IN THE CASE OF:	  

		BOARD DATE:	  	  16 December 2008

		DOCKET NUMBER:  AR20080015231 


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 other than honorable discharge be upgraded to honorable.

2.  The applicant states, in effect, that his mother was very ill and he was denied leave to go care for her.  He was a good Soldier and, under normal circumstances would not have been absent from his place of duty.

3.  The applicant provides two unsigned character references stating that he is helpful and respectful.

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 and entered active duty on 24 July 1979.  He completed training as an infantryman.  On 9 June 1980, he was stationed at Fort Ord, California, and he was advanced to private first class, pay grade E-3, on 1 November 1980.

3.  A DA Form 4187 (Personnel Action) shows the applicant was absent without leave (AWOL) from 18 to 27 February 1980.  There is no disposition of record.

4.  On 1 December 1980, the applicant received nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for a 1-day period of AWOL.

5.  DA Forms 4187 show the applicant was on ordinary leave from 15 December 1980 and AWOL following leave on 1 January 1981.  He surrendered to military authorities at Fort Bragg, North Carolina, on 12 February 1981.

6.  An 18 February 1981 mental status evaluation found the applicant's behavior normal.  He was fully alert and oriented and displayed an unremarkable mood.  His thinking process was clear, thought content normal, and his memory good.  The medical doctor opined that the applicant had the mental capacity to understand and participate in the discharge proceedings, was mentally responsible, and met retention medical standards.

7.  The applicant's separation packet was not available for review by the Board.

8.  On 30 March 1981, the applicant was discharged with an under other than honorable conditions discharge under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 10.  He had 1 year, 6 months, and 17 days of creditable service and 51 days lost time due to AWOL.

9.  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.

10.  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.

11.  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. [rc]

DISCUSSION AND CONCLUSIONS:

1.  Although the discharge documentation is not of record, the evidence of record shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have had to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant would be required to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  Included in the chapter 10 requirements at that time was a requirement that the applicant admitted guilt to the stipulated offenses under the UCMJ or lesser-included charges.  In the absence of information to the contrary, the Board is required to presume all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

2.  There is no documentation to support the applicant's contention and no rationale to support the implied conclusion that those alleged circumstances would warrant the requested relief.

3.  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.


																XXX
      _________________________
                 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)                                         AR20080015231



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ABCMR Record of Proceedings (cont)                                         AR20080015231



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