IN THE CASE OF:	  

		BOARD DATE:	        21 JANUARY 2009

		DOCKET NUMBER:  AR20080017026 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant essentially states that he served honorably for over 2 years and that he reenlisted.  He also states, in effect, that he was absent without leave (AWOL) for only 2 weeks and was given a choice of either being discharged or being placed in confinement.  He further states that he was only 17 years old when he entered the service.  Additionally, he states that he is currently homeless and seeking assistance with the Department of Veterans Affairs (DVA), and that he lost his job and needs help.

3.  The applicant provides no additional evidence in support of this 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 military records show that he enlisted in the Regular Army on 26 October 1977.  He completed basic and advanced individual training and was awarded military occupational specialty 71L (Administrative Specialist).  He was then reassigned to Fort Lee, Virginia, for his initial permanent duty assignment.  On 29 April 1980, he reenlisted for a period of 3 years and for the continental United States (CONUS) to CONUS Station of Choice Enlistment Option for an assignment at Fort Ritchie, Maryland.

3.  On 16 May 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using and selling 5.4 grams of marijuana.  His punishment consisted of a reduction in rank and pay grade from specialist four/E-4 to private first class/E-3, forfeiture of $107.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty.

4.  On 18 June 1980, the applicant accepted NJP under Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction in rank and pay grade from private first class/E-3 to private/E-2, which was suspended for 90 days, forfeiture of $50.00 pay per month for 1 month, 14 days of restriction, and 14 days of extra duty.

5.  Orders, dated 9 May 1980, directed that the applicant proceed on permanent change of station (PCS) from Fort Lee, Virginia, to Fort Ritchie, Maryland, with a will-proceed date from Fort Lee of 22 July 1980 and a reporting date at Fort Ritchie of 19 August 1980.  The applicant departed on PCS leave on 22 July 1980.  However, he did not report to Fort Ritchie on 19 August 1980 and he was placed in an assigned-not-joined status effective 2400 hours, 19 August 1980, and was further placed in an AWOL status effective 0001 hours, 20 August 1980.  On 18 September 1980, he was dropped from the rolls of the Army and classified a deserter, and remained in this status until he surrendered to military authorities on 13 November 1980.  He was assigned to the United States Army Personnel Control Facility at Fort Dix, New Jersey.

6.  On 11 December 1980, the applicant was informed that charges had been preferred against him for being AWOL from his unit on or about 20 August 1980 and remaining so absent until on or about 13 November 1980, an offense punishable under the UCMJ with a punitive discharge.

7.  On 15 December 1980, a mental status evaluation was conducted on the applicant and he was essentially cleared for any administrative action deemed appropriate by his command.

8.  In an undated letter, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations Enlisted Personnel).  In his request, he acknowledged that he understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

9.  In his request for discharge, the applicant acknowledged that he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.

10.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He further acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [now named the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he understood that he could expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He did not elect to submit a statement in his own behalf.  He was placed on excess leave on 12 January 1981.

11.  On 13 January 1981, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also directed that the applicant be reduced in rank to private/E-1. On 20 June 1981, the applicant was discharged accordingly.

12.  A letter, dated 16 March 1984, informed the applicant that the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, determined that he was properly and equitably discharged.  He was also informed that his request for a change in the character and/or reason for his discharge was denied.

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 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.  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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.


DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The applicant's contention that he was AWOL for only 2 weeks was considered, but not found to have any merit.  The evidence of record clearly shows that he was AWOL for nearly 2 1/2 months, and that he had been dropped from the rolls of the Army and classified a deserter.

3.  The applicant's contention that he was young at the time was also considered. However, while the applicant was 4 days shy of his 18th birthday at the time he entered active duty, he was over 20 years old at the time of his NJP, and was over 21 years old at the time he requested discharge in lieu of a trial by court-martial.  There is no also evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

4.  The fact that the applicant is apparently homeless and seeking assistance from the DVA was noted.  However, the DVA administers its benefit programs under its own regulations and policies, and granting DVA benefits is not within the purview of the ABCMR.

5.  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.

6.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

7.  The applicant's record of service shows that he accepted NJP under Article 15 of the UCMJ on two occasions for wrongfully using and selling 5.4 grams of marijuana and failing to go at the time prescribed to his appointed place of duty, and was pending a trial by court-martial for absenting himself without authority from his unit for nearly 2 1/2 months.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either an honorable or general 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.



      __________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)                                         AR20080014424



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ABCMR Record of Proceedings (cont)                                         AR20080017026



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