IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080016215 


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 be upgraded to a more favorable discharge.

2.  The applicant states that his discharge should be upgraded due to unfair or incompetent representation.  He also states that his punishment was too harsh when his entire military record, to include two prior honorable discharges is taken into consideration.

3.  The applicant provides no additional documents with 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 served in the U.S. Marine Corps from 28 April 1978 until he was honorably released from active duty on 27 April 1981 due to completion of required service.  He served in the U.S. Air Force Reserve from 25 September 1986 until he was honorably discharged on 24 September 1989.

3.  On 14 February 1990, he enlisted in the Regular Army for a period of 4 years and training as a Patriot Operator and Systems Mechanic.  He completed his basic training at Fort Sill, Oklahoma, and his advanced individual training (AIT) at Fort Bliss, Texas.  He remained assigned to Fort Bliss upon completion of his AIT and was promoted to the pay grade of E-6 on 1 September 1992.

4.  The applicant was reported as absent without leave (AWOL) at 1030 hours on 28 October 1992.  He was dropped from the rolls on 29 November 1992.

5.  On 28 December 1992, officials at the Fort Irwin, California, Provost Marshal Office were tasked to retrieve the applicant at the Mexican American Border in San Diego from the Mexican Police at 2200 hours.

6.  The applicant surrendered to military authorities at Fort Knox, Kentucky, on 29 December 1992.  On 7 January 1993, charges were preferred against the applicant for being AWOL from 28 October 1992 to 29 December 1992.  The applicant remained at Fort Knox awaiting the receipt of his military records.

7.  After consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will without coercion from anyone, and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive an under other than honorable conditions discharge and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit a statement in his behalf whereas he requested that he be given a general discharge and asserted that he was arrested in Mexico for a crime he did not do and contended that his military record justified a general discharge.

8.  The applicant also signed an Admission of AWOL for Administrative Purposes in which he declared that he had been advised by his defense counsel that all required documentation to support trial by court-martial had not yet been received and that his defense counsel could not properly advise him at that time without those records.  He further stated that he realized that his defense counsel was limited by the few records that were available as to the advice he could give and nevertheless, knowing all that to be true, he waived all defenses that may have become known had his defense counsel been able to review his records.  He also stated that he knowingly, willingly, and voluntarily declared that he was AWOL from 28 October 1992 to 29 December 1992 and that he made the admission for administrative purposes only so that he could process out of the Army and realized in doing so, he may be given a discharge under other than honorable conditions.

9.  The appropriate authority approved his request for discharge on 8 February 1993 and directed that he be discharged under other than honorable conditions.

10.  Accordingly, he was discharged under other than honorable conditions on 25 February 1993 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 10 months, and 11 days of active service during his current enlistment for a total of 5 years, 10 months, and 11 days of total active service.  He had 2 months of lost time.

11.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 9 July 1996 and was granted a personal appearance before the ADRB Travel Panel in Chicago, Illinois, on 10 September 1997.  The applicant testified before that board and asserted that he had been arrested and incarcerated in Mexico for a crime that he did not commit.  Officials advised the applicant that before a final decision would be made by that board, he would be afforded an opportunity to provide that board with official documentation to support his contention surrounding his incarceration in Mexico.  The applicant responded to the effect that he could do that and the hearing was adjourned.  There is no evidence in the available records to show that he ever complied with or provided such evidence, and on 4 March 1998 the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his request for an upgrade of his discharge.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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, at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.

13.  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.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

2.  The applicant's administrative separation, which was initiated by the applicant, was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  Accordingly, the type of discharge directed and the reasons therefor were appropriate considering all of the available facts of the case.

4.  The applicant's contention that he had inadequate and/or incompetent representation has been noted and found to lack merit.  The evidence of record clearly shows that his counsel properly advised him of his options and his rights at the time and the decisions made by the applicant appear to have been made after he had been properly advised and without any coercion.  In any event, that is what the applicant indicated in his statements at the time and there is no apparent reason to believe that he was not being truthful at the time he made them.

5.  It is also noted that the applicant was a senior noncommissioned officer (NCO) at the time he was AWOL and he should have fully realized the ramifications of his actions at the time.  However, he has failed to show through the evidence submitted with his application and the evidence of record that his lost time was through no fault of his own.  Therefore, in the absence of such evidence, it must be presumed that the applicant was in fact AWOL and that he violated the trust placed in him as an NCO to set an example of accountability at all times.  Accordingly, his service does not rise to the level of honorable service.

6.  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)                                         AR20080016215



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ABCMR Record of Proceedings (cont)                                         AR20080016215



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