IN THE CASE OF:	  

		BOARD DATE:	        16 December 2008

		DOCKET NUMBER:  AR20080013940 


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, that his under other than honorable conditions discharge be upgraded.

2.  The applicant states he had participated in the U.S. Naval Sea Cadet Corps starting in 1981.  He joined the Naval Reserve in 1984 and attended part of basic training between his junior and senior years in high school.  While he was completing his training, he finally enlisted in the Regular Army in order to get into a different career field.  Shortly after he completed the last 4 weeks of Army basic training, his father died.  His mother needed him at home or at least closer to home.  With the help of a Congressman, he tried to get transferred to the U.S. Army Reserve or the Army National Guard, but was unsuccessful.  He finally had to go AWOL (absent without leave) in order to help his mother.  He always prepared for a military career and invested much time and effort into achieving that goal.  He now has 20 years of experience in construction and there are positions available in the Navy Sea Bees.  He would like his discharge upgraded so that he can have a chance to achieve his dream.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty); his self-authored military history; 28 January 1987 letters barring him from Fort Dix, New Jersey and forwarding his separation documents; four letters from his congressman; two letters from the Army to his Congressman; and 11 pages of service record documents.  


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.  Following prior service in the Naval Reserve for approximately 1 year and 
11 months and approximately 3 months in the Delayed Entry Program, the applicant entered active duty in the Regular Army on 18 February 1986.

3.  He completed training on 30 May 1986 and was assigned to duty as a supply specialist at Fort Stewart, Georgia, on 19 June 1986.  

4.  The applicant was AWOL from 1 July to 3 November 1986.

5.  He was asked, in a 5 November 1986 counseling session, why he went AWOL.  He replied that when his father died on 16 April 1986, he realized that he would have to help support his mother.  He wanted to be closer to home to do that and he had a good job.  Before he went AWOL he had sought help from the chaplain and his platoon sergeant; however, that did not resolve his situation.

6.  When charges were preferred for his AWOL offense, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial. 

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 

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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 18 December 1986, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 28 January 1987, the applicant was discharged accordingly.  He had completed 7 months and 5 days of creditable active military service and had accrued 123 days of time lost due to AWOL.

9.  There is no available evidence that the applicant applied to the Army Discharge Review Board during the 15-year period of eligibility.

10.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel.  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. 

12.  Army Regulation 635-220, 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.

13.  The Manual for Courts-Martial, in effect at the time, provided for a maximum punishment of a punitive discharge for any AWOL offense in excess of 30 days.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons were appropriate considering all of the facts of the case.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080013940



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ABCMR Record of Proceedings (cont)                                         AR20080013940



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