IN THE CASE OF:	  

		BOARD DATE:	       23 October 2008

		DOCKET NUMBER:  AR20080014244 


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 general, under honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states, "I sent my General Discharge in to be upgrade to a Honorable in 1983 and I haven't got it back yet."  He thinks that his failure to apply within this Board's 3-year statute of limitations should be excused, "Because the Army told me that it would be upgraded to Honorable."  He further states, "All my document got burn up in a house fire."

3.  The applicant provides no additional documents 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 enlisted on 28 December 1977.  He completed training as a cavalry scout and was stationed in Germany in April 1978.  He was absent without leave (AWOL) on 14 August 1978.

3.  On 11 October 1983 charges were preferred under the Uniform Code of Military Justice (UCMJ) for AWOL from 14 August 1978 to 10 October 1983.

4. 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 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. 

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he admitted 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 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 her rights and benefits as a veteran under both Federal and State law.   

7.  On 18 January 1984, the separation authority approved the separation action and directed issuance of an under other than honorable conditions discharge.

8.  On 26 January 1984, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 by reason of for the good of the service – in lieu of court-martial.  He has completed 11 months and 5 days of active military service with 1,884 days of lost time due to AWOL, which is equivalent to 5 years, 1 month, and 28 days.

9.   There is no available evidence that the applicant applied to Army Discharge Review Board during that board's 15-years period on 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.  The Manual for Courts-Martial, Table of Maximum Punishments shows that a punitive discharge is authorized for any AWOL of more than 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 therefore were appropriate considering all of the facts of the case.  He performed no redeeming service.  The contention that someone told him his discharge would be upgraded is insufficient to warrant relief.  

3.  There is no evidence to support the applicant’s contentions that he had a general discharge; that he was told his discharge would be upgraded; or that he previously applied for a discharge upgrade.

4.  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)                                         AR20080014244



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ABCMR Record of Proceedings (cont)                                         AR20080014244



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