IN THE CASE OF:	  

		BOARD DATE:	       11 December 2008

		DOCKET NUMBER:  AR20080015178 


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 an upgrade of his discharge to honorable.

2.  The applicant states that he was young and immature at the time.  He adds that he was mentally and physically impaired.  His back was in terrible condition and his spouse could not adapt to military life and left him several times.  As soon as his first child was born, she left him and moved back home which destroyed his way of thinking and led to his absent without leave (AWOL) status.

3.  The applicant provided a self-authored letter, dated 3 September 2008, and a copy of DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 December 1986, 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 records show that he was born on 13 November 1961 and enlisted in the Regular Army for a period of 3 years at the age of 23 on 2 October 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty 64C (Motor Transport Operator).  The highest rank/grade the applicant attained during his military service was private/E-1.

3.  The applicant's records show he was awarded the Army Service Ribbon and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not reveal any significant acts or achievements during his military service.

4.  The applicant’s records reveal an extensive history of AWOL during the periods of on or about 8 January 1986 through on or about 27 January 1986, on or about 6 May 1986 through on or about 20 May 1986, and on or about 29 May 1986 through on or about 8 October 1986.

5.  On 29 May 1986, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 28 June 1986.  He remained in an absent status until he was apprehended by civil authorities in Benton, Illinois, for the civilian charges of battery and failure to appear and was confined pending court appearance.  He subsequently appeared in court on 14 October 1986, pled guilty, and was sentenced to one year probation and a $135.00 fine.  He returned to military control on 14 October 1986.

6.  On 17 October 1986, court-martial charges were preferred against the applicant for two specifications of being AWOL during the periods from on or about 6 May 1986 through on or about 21 May 1986 and on or about 29 May 1986 through on or about 14 October 1986.

7.  On 21 October 1986, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

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

9.  On 29 October 1986, the applicant's immediate and intermediate commanders recommended approval of the applicant’s discharge with an under other than honorable conditions discharge.

10.  On 4 November 1986, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 1 December 1986, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge shows that he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 8 months and 10 days of creditable active military service and had 163 days of lost time due to AWOL.

11.  In his self-authored letter, dated 8 September 2008, the applicant states that he was very young at the time of his enlistment with a child and an expecting wife.  His wife did not adjust to military life very well and left him several times during his military service.  He ended up becoming very depressed for fear of losing his wife.  After his second child was born, his wife left again and moved back home for good.  He could not handle the separation and followed his wife by going AWOL for the last time.  He adds that he feels his depression along with the lack of family support totally contributed to the outcome of his military experience.  He also adds that he suffered from severe depression most of his life and is trying to receive medical treatment for his depression as well as other medical conditions of social phobia and degenerative disc disease.  He concludes that he is now divorced, yet he is raising an 8-year old child of his own and appeals to this Board for an upgrade of his discharge.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

13.  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 under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, 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.

15.  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 contends that his discharge should be upgraded.

2.  Records show that the applicant was 23 years of age at the time of his enlistment and 24 years of age at the time of his offense.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the applicant’s records that he suffered from any personal problems or that these problems contributed to his AWOL.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his repeated record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.
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.


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      _________________________
                 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)                                         AR20080015178



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ABCMR Record of Proceedings (cont)                                         AR20080015178



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