IN THE CASE OF:		 

		BOARD DATE:		20 November 2008	  

		DOCKET NUMBER:  AR20080014392 


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 discharge under other than honorable conditions (UOTHC) be upgraded to allow him to receive benefits.

2.  The applicant states that he was severely injured on active duty and he feels that he is entitled to military benefits.  

3.  The applicant provides no additional documents in support of 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 in the Regular Army on 20 March 1979 for a period of four years.  At the completion of basic combat and advanced individual training, he was awarded military occupational specialty 63B (wheel vehicle mechanic).  His highest grade attained was private (PV2)/E-2.  He was assigned to Germany on 11 August 1979.  

3.  On 12 March 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for three specification of being absent from his place of duty.  

4.  On 8 April 1980, the applicant accepted NJP under Article 15, UCMJ for three specification of being absent from his place of duty.

5.  On 10 December 1980, charges were preferred against the applicant for being absent without leave (AWOL) on two separate occasions, from 10 June 1980 to 20 August 1980 and from 22 October 1980 to 7 December 1980.  

6.  On 10 December 1980, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he admitted guilt to the offenses charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Department of Veterans Affairs (DVA) if a discharge UOTHC was issued.  He submitted statements in his own behalf.  He stated that he had family problems while on leave from Germany and he could not get a leave extension.  He stated he wanted to get out of the Army so he could get a decent job to support his family.  

7.  On 6 January 1981, the separation authority approved the discharge under the provisions of Army Regulation 635-200, chapter 10, with issuance of a UOTHC Discharge Certificate.

8.  Accordingly, the applicant was discharged from active duty on 17 February 1981 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service with a discharge UOTHC.  He had completed 1 year, 8 months, and 18 days of active military service.  He had 70 days of lost time due to AWOL.

9.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  



10.  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 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 UOTHC is normally considered appropriate.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  Issuance of an honorable discharge is predicated upon proper military behavior and proficient performance of duty during the member's current enlistment or period of obligated service with due consideration to the member's age, length of service and general aptitude.  Where a member has served faithfully and performed to the best of his or her ability, an honorable discharge certificate should be furnished.

12.  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.

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 applicant’s service record shows he received two Article 15s and was charged for being AWOL on two separate occasions for a total of 70 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or a general discharge.

3.  The applicant’s statements are noted.  However, there is no evidence of record which indicates the actions taken in his case were in error or unjust; therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable or general.

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.



      ________xxxx______________
               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)                                         AR20080014392



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ABCMR Record of Proceedings (cont)                                         AR20080014392



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