IN THE CASE OF:	  

		BOARD DATE:	        4 November 2008

		DOCKET NUMBER:  AR20080013497 


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 that his under other than honorable conditions discharge be upgraded.

2.  The applicant states that he was young at the time and made a bad choice.

3.  The applicant provided no evidence in support of his request.

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.  On 27 November 1984, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 8 years.  On 8 January 1985, he was discharged from the DEP and enlisted in the Regular Army for 3 years on 9 January 1985.  He was 17 years old when he enlisted.  He completed training requirements and was awarded military occupational specialty 19D (Cavalry Scout).  He attained the grade of specialist four/E-4.  On 7 June 1987, the applicant reenlisted for a period of 3 years.

3.  On 7 February 1989, the applicant was charged with absence without leave (AWOL) from 7 July 1988 through 19 January 1989.

4.  On 7 February 1989, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State laws.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He did not submit a statement in his own behalf.

5.  On 17 February 1989, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge. 

6.  Accordingly, the applicant was discharged on 30 March 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He was credited with 3 years, 8 months, and 9 days of total active service and had 197 days of lost time due to AWOL.

7.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for a 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.  An under other than honorable conditions discharge was normally considered appropriate for this type of discharge.

8.  Army Regulation 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  Army Regulation 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.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant went AWOL for a period of 
197 days.  He was 20 years old and had over 3 years of service when he went AWOL.  Clearly, he would have understood the ramifications of his actions.  Further, the applicant met entrance qualification standards to include age.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights. In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the Uniform Code of Military Justice.

3.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He has not provided any mitigating evidence to his lengthy record of misconduct.  Therefore, there is no justification to change the characterization of his service. 

4.  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 did not submit any evidence that would satisfy this requirement.


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.


																XXX
      _________________________
                 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)                                         AR20080013497



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ABCMR Record of Proceedings (cont)                                         AR20080013497



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