IN THE CASE OF:	

		BOARD DATE:	  23 December 2008

		DOCKET NUMBER:  AR20080017023 


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 under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge.  

2.  The applicant states that there was no court-martial trial.  

3.  The applicant provides a copy of 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 enlisted in the Army National Guard on 21 February 1978.  At the completion of active duty for training, he was awarded military occupational specialty (MOS) 62B (equipment construction repairer).  He was discharged from the Army National Guard on 1 July 1979.

3.  The applicant enlisted in the Regular Army on 2 July 1979 and was assigned to Fort Carson, Colorado.  

4.  His service personnel records contain a DA Form 4187 (Personnel Action), dated 27 September 1979, which shows he was in an AWOL [absent without leave] status on 13 September 1979.  A Personnel Action, dated 23 October 1979, shows he was present for duty on 15 October 1979.

5.  On 4 November 1980, charges were preferred against the applicant for being AWOL from 2 November 1979 to 28 October 1980.  

6.  On 6 November 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, chapter 10.  In doing so, he admitted guilt to the offense 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 Veterans Administration (VA) if an UOTHC was issued.  He elected to submit statements in his own behalf.  He stated, in effect, that he was 21 years old and had a tenth grade education.  He joined the Army to learn a skill and to serve his country.  He stated that he went AWOL because he wanted to get out of the Army and he had family problems.  

7.  On 2 December 1980, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an UOTHC discharge.

8.  Accordingly, the applicant was discharged from active duty on 10 February 1981 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an UOTHC discharge.  He had completed 6 months and 11 days of active military service with 393 days of lost time due to being AWOL.

9.  There is no evidence which shows 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 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

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 states that he did not have a trial by court-martial.  

2.  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.

3.  The applicant's service records show he was AWOL on two separate occasions for a total of 393 days of lost time.  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 an upgrade to an honorable or a general discharge.

4.  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.



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)                                         AR20080017023



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ABCMR Record of Proceedings (cont)                                         AR20080017023



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