IN THE CASE OF:	 

		BOARD DATE:	  2 October 2008

		DOCKET NUMBER:  AR20080012640 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, an upgrade of his discharge.

2.  The applicant states that he was young and having marital problems at the time.

3.  The applicant did not provide any additional documentary evidence in support of his application.

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.



2.  The applicant's records show that he was born on 18 July 1959 and enlisted in the Regular Army at 19 years of age for a period of 3 years on 24 April 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 76W (Petroleum Supply Specialist).  His records also show he executed a 3-year reenlistment in the Regular Army on 23 November 1981.  The highest rank/grade the applicant attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's awards and decorations include the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle and Grenade Bars, the Parachutist Badge, and the Good Conduct Medal.

4.  On 11 March 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for willfully and unlawfully violating a general order on or about 24 February 1981 by driving a motor vehicle without a valid driver's license, and for disobeying a lawful order from a superior noncommissioned officer, on or about 25 February 1981.  His punishment consisted of reduction to private (PV2)/E-2 (suspended), 7 days of correctional custody, and forfeiture of $130.00 pay.  The applicant appealed his punishment on 11 March 1981; however, his appeal was denied by the next superior authority on 12 March 1981.

5.  On 16 March 1984, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the rolls (DFR) of the Army on 25 April 1984.  He remained in a DFR status until he was apprehended by military authorities at Kadena Air Force Base, Okinawa, Japan, and was returned to Army control at Camp Casey, Korea, on 18 June 1984.

6.  On 13 July 1984, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 16 March 1984 until on or about 18 June 1984.  

7.  On 13 July 1984, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation (AR) 635-200 (Personnel Separations).

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 23 July 1984, the applicant's immediate commander recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge. 

10.  On 25 July 1984, the applicant's intermediate commander also recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge.

11.  On 6 August 1984, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of
AR 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced the lowest enlisted grade.  On 23 August 1984, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 5 years and 26 days of creditable active military service and had 94 days of lost time due to AWOL.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

13.  AR 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

14.  AR 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  AR 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was 19 years of age at the time of his enlistment and 24 years of age at the time of his offense.  However, there is no evidence that indicates that he was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his AWOL was the result of his age or marital problems. 

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.



BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ___X____  __X____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      _________X_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080012640



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ABCMR Record of Proceedings (cont)                                         AR20080012640



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