IN THE CASE OF:	  

		BOARD DATE:	       23 October 2008

		DOCKET NUMBER:  AR20080013981 


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 to a general, under honorable conditions discharge. 

2.  The applicant states, in effect, that he went absent without leave (AWOL) because the emotional trauma of the death of his father, who will always be his best friend.  He was young and immature, deeply remorseful and regrets his actions.  Since then he has matured into a responsible and more mature man.  He now knows the circumstances which led to his incarceration and is now ready to move on with his life in a productive fashion.  He has educated himself to various industries and has learned different trades such as welding, landscaping and agriculture.  With great respect and humility, he is requesting an upgrade of his discharge so that he can receive health and medical benefits, which will help him, launch a successful small business.  He cannot stress enough how much he has changed since his younger days and how sincere he is about becoming a model citizen and continuing to serve his country to the best of his abilities.  He hopes and prays that this Board take all the mitigating circumstances into consideration and upgrade his discharge.  In conclusion, it is an honor to have been a veteran as apart of his life, past, present and the future, to boldly proclaim his patriotism to this great country.  

3.  The applicant provides a self-authored letter 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 record shows that he enlisted in the Regular Army on 
27 October 1977, for a period of 3 years, he was 18 years old at the time of his enlistment.  He completed the required training and was awarded military occupational specialty 19E (Armor Crewman).  

3.  On 8 May 1978, court-martial charges were preferred against the applicant for being AWOL from 1 April to 2 May 1978.  

4.  On 11 May 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of discharge under other than honorable conditions and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.  He also stated his understanding 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  The applicant did not submit a statement in his own behalf.   

5.  On 12 May 1978, a Report of Medical Examination found the applicant fit for retention or separation from service.

6.  On 12 June 1978, the separation authority approved the applicant’s request for discharge and directed that he be that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  

7.  On 8 July 1978, the applicant was discharged.  The separation document (DD Form 214) he was issued confirms he completed 7 months and 11 days of creditable active military service and accrued 30 days of time lost.  

8.  Army Regulation 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.

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 indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contentions were carefully considered and found to be insufficient in merit.  

2.  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, duress or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.   

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.  

4.  Records show that the applicant was only 19 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

5.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request. 

6.  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 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.



      __________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)                                         AR20080013981



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ABCMR Record of Proceedings (cont)                                         AR20080013981



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