IN THE CASE OF:	

		BOARD DATE:	  13 January 2009

		DOCKET NUMBER:  AR20080014754 


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 to general. 

2.  The applicant states, in effect, that he has been trying to get his discharge upgraded since 1985.  He also states that he attached a statement apparently explaining why he believes the record to be in error or unjust; however, the statement was not received with his application.

3.  In support of his application, the applicant provides copies of his Certificate of Military Service and his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 military records show he enlisted in the U.S. Army, in pay grade E-1, on 13 January 1977, for 3 years.  He completed basic and advanced training and was awarded military occupational specialty 11B, Infantryman.  He was promoted to pay grade E-4 on 1 April 1979.

3.  The applicant was honorably discharged for immediate reenlistment on 23 July 1979 and was issued a DD Form 214.  He reenlisted on 24 July 1979 for 4 years.  

4.  On 1 September 1979, the applicant was apprehended by civilian authorities for breach of the peace.  He was placed in confinement with military authorities on 5 September 1979 and returned to his unit on 7 September 1979.

5.  The applicant was reported absent without leave (AWOL) on 1 November 1979 and dropped from the rolls of his unit on 16 November 1979.  He was apprehended by civilian authorities on 7 May 1980 and returned to military control on the same date.

6.  On 13 May 1980, a Charge Sheet (DD Form 458) was prepared by the Commander, Special Processing Company, Personnel Control Facility, Fort Knox, Kentucky.  The applicant was charged with one specification of AWOL from 1 November 1979 to 7 May 1980.

7.  On 16 May 1980, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate and, as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the VA (Veterans Administration).  He waived his rights to a hearing before a board of officers and elected to submit a statement in his own behalf.

8.  In a statement, the applicant stated, in effect, that he went AWOL because of the way he was being treated and being harassed all the time.  He further stated, in effect, that he could be with his family and get a civilian job making more than the Army paid.  He just could not adjust to military life like he used to and wanted out.

9.  On 16 May 1980, the applicant's unit commander recommended approval of the applicant's request.  The unit commander stated that the applicant's conduct had rendered him triable by court-martial under the circumstances.  Based on the applicant's previous record, punishment could be expected to have a minimal rehabilitative effect.  The unit commander believed a discharge at that time to be in the best interest of all concerned.

10.  On 21 May 1980, the applicant's battalion-level commander recommended approval of the applicant's request and recommended he be discharged under other than honorable conditions.

11.  On 27 May 1980, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1.

12.  The applicant was discharged on 22 July 1980 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial with his service characterized as under other than honorable conditions.  He was credited with 5 months and 23 days of total active service during this period and 2 years, 6 months, and 11 days of total prior active service.  He was also credited with lost time from 1 November 1979 to 6 May 1980 due to being AWOL.  His DD Form 214 shows he was placed in an excess leave status from 16 May to 22 July 1980.

13.  On 14 April 1992, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

14.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set forth the basic authority for 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 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 was normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that his discharge should be upgraded has been considered.  However, the applicant was charged with one specification of being AWOL from 1 November 1979 to 7 May 1980.  Upon his return to military control, he voluntarily requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.

3.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.

4.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general discharge.

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

6.  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)                                         AR20080014754



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ABCMR Record of Proceedings (cont)                                         AR20080014754



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