IN THE CASE OF:	  

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080017045 


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 under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states, in effect, he would like his discharge upgraded to qualify for medical benefits.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)

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 he enlisted in the Regular Army, in pay grade E-1, on 1 November 1978.  He completed basic combat and advanced training and was awarded military occupational specialty (MOS) 11H (Heavy Anti-armor Weapons Crewman).  He was promoted to pay grade E-4 on
7 August 1980.  

3.  The applicant was reported absent without leave (AWOL) on 28 April 1981 and returned to military control on 30 April 1981.

4.  On 2 July 1981, the applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his appointed place of duty on 22 June 1981.  His punishment included a forfeiture of $116.00 pay per month for one month and 14 days of extra duty and restriction.  He elected to appeal his punishment and his appeal was denied on 6 July 1981.

5.  On 28 January 1982, the applicant was punished under Article 15, UCMJ, for going from his appointed place of duty on 17 January 1982.  His punishment included a reduction of one pay grade [to pay grade E-2] (suspended for 90 days), a forfeiture of $144.00 pay per month for one month, and 14 days of extra duty.  He did not appeal the punishment.

6.  On 10 May 1982, the applicant was punished under Article 15, UCMJ, for failing to go to at the time prescribed to his appointed place of duty on 17 April 1982.  His punishment included a reduction to pay grade E-2 (suspended for 90 days), a forfeiture of $144.00 pay per month for one month, and 5 days in the correctional confinement facility.  He did not appeal the punishment.

7.  On 2 June 1982, the suspension of the applicant's reduction to E-2 imposed on 10 May 1982 was vacated by reason of misconduct.

8.  The applicant was reported AWOL on 17 May 1982 and returned to duty on 19 May 1982.  

9.  On 8 June 1982, the applicant was convicted by summary court-martial of one specification of absenting himself from his unit from 17 May to 19 May 1982.  He was sentenced to a reduction to pay grade E-1, confinement at hard labor for 14 days, and a forfeiture of $367.00 pay per month for one month.  The sentence was adjudged on 8 June 1982 and approved on 8 June 1982.  

10.  The applicant was reduced to pay grade E-1 on 8 June 1982.  From 10 June through 18 June 1982, he was confined in the Installation Detention Facility, Fort Campbell, Kentucky.

11.  The applicant was reported AWOL on 19 October 1982 and returned to duty on 20 October 1982.  

12.  The applicant was reported AWOL on 2 November 1982 and dropped from the rolls of the Army on 1 December 1982.  He surrendered to military authorities on 31 May 1983 and was returned to military control on the same date.

13.  On 3 June 1983, a Charge Sheet (DD Form 458) was prepared by the Commander, Special Processing Company, Personnel Control Facility, Fort Knox, Kentucky.  The applicant was charged with one specification of AWOL from 2 November 1982 to 31 May 1983.

14.  On 3 June 1983, the applicant elected not to undergo a medical examination prior to his separation.

15.  On 9 June 1983, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veteran Affairs].  He waived his rights to a hearing before a board of officers and elected not to submit a statement in his own behalf.

16.  On 14 June 1983, the applicant's unit commander recommended approval of the applicant's request.  The unit commander stated that the applicant's conduct had rendered him triable by court-martial under the circumstances.  Based on the applicant's previous record of indiscipline, punishment could be expected to have a minimal rehabilitative effect.  The unit commander believed a discharge at that time to be in the best interest of all concerned.

17.  On 14 June 1983, the applicant's battalion commander recommended approval of the applicant's request and recommended he be discharged under other than honorable conditions.

18.  On 20 June 1983, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1. 

19.  The applicant was discharged on 13 July 1983, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial, with his service characterized as under other than honorable conditions.  He was credited with 4 years, 1 month, and 1 day of total active service.  He was also credited with lost time from 28 to 29 April 1981, 17 to 18 May 1982, 10 to 17 June 1982, 19 October 1982, and from 2 November 1982 to 30 May 1983, due to confinement and AWOL.

20.  The applicant's submitted DD Form 293, dated 16 September 2008, could not be processed because the statutory period for appeals prohibited the Army Discharge Review Board (ADRB) from processing applications received after 15 years from the date of discharge or release from active duty.  There is no evidence the applicant applied to the ADRB within its 15-year statute of limitations for an upgrade of his discharge.

21.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  At that time, an under other than honorable conditions discharge was normally considered appropriate.

22.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

23.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  
2.  The applicant's contention that his discharge should be upgraded has been considered.  However, the evidence of record shows the applicant was punished three times under Article 15, had several periods of AWOL, was convicted by a summary court-martial for AWOL and placed in confinement, and dropped from the rolls of the Army as a deserter.  The applicant was charged with one specification of being AWOL from 2 November 1982 to 31 May 1983.  Upon his return to military control, he voluntarily requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.

3.  The applicant's misconduct diminished the quality of his service below that meriting a fully honorable discharge or even a general, under honorable conditions, discharge.  The applicant has submitted neither probative evidence nor a convincing argument to show that he is now deserving of a fully honorable discharge.  

4.  The evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of that prior to being discharged.  The separation authority could have directed a general discharge if such a discharge were merited by the Soldier's overall record; however, the evidence shows the separation authority decided he did not merit a general discharge after considering the applicant's record and periods of AWOL.

5.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a fully honorable discharge.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge to honorable for the purpose of qualifying an individual to receive medical benefits.  

6.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

7.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.
8.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080017045



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ABCMR Record of Proceedings (cont)                                         AR20080017045



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