IN THE CASE OF:	

		BOARD DATE:	  22 January 2009

		DOCKET NUMBER:  AR20080017458 


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 fully honorable.  He also requests that he be provided his DD Form 214 (Certificate of Release or Discharge from Active Duty) from his initial enlistment and requests guidance on obtaining replacement records, to include awards and medals. 

2.  The applicant states that he was having problems with alcohol and that his spouse left him.  Additionally, he states that his records were stolen.

3.  The applicant provides no additional documentary evidence in support of 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's military records show he enlisted in the Regular Army on 31 May 1978.  He completed basic combat and advanced individual training and was awarded the military occupational specialty infantryman.  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

3.  On 2 July 1982 the applicant immediately reenlisted.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniformed Code of Military Justice (UCMJ) for being absent without leave (AWOL) from his place of duty on or about 5 September 1980 and on or about 9 July 1982.  The applicant also accepted NJP for failure through neglect to move with his unit and for breaking restriction.

5.  On 7 June 1983, following appointment of legal counsel, the applicant submitted a statement in which he admitted to being AWOL during the period 1 April 1983 through 18 May 1983.  This admission was done for administrative purposes so the applicant could be processed out of the Army.  In his statement the applicant acknowledged that he may be given an other than honorable discharge.  His military counsel explained to him the legal and social ramifications of that type of discharge.

6.  The applicant's discharge packet is not contained in his records.  However, on 28 June 1983 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He had completed 5 years and 1 day of creditable active military service with 48 days of lost time due to being AWOL.

7.  On 19 May 1987, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

8.  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.  At the time, a discharge under other than honorable conditions was normally considered appropriate.

9.  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.

10.  Army Regulation 635-5 (Separation Documents) provides that, effective 1 October 1979, DD Forms 214 are not issued to enlisted service members who are discharged for immediate reenlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant accepted NJP on three occasions and was AWOL for 48 days.  This pattern of serious misconduct warranted a discharge under other than honorable conditions.

2.  While the applicant’s discharge packet is not contained in his record, he was discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant would have had to admit guilt and request discharge in lieu of trial by court-martial.  In other words, the Army gave the applicant what he asked for.

3.  The applicant has not submitted any evidence to show that he had problems with alcohol or marital problems.  However, contrary to the applicant’s contention, the Army would have provided him assistance with these or other problems if he had but asked.  As such, the applicant’s alleged alcohol and marital problems are not considered sufficiently mitigating to warrant upgrading a properly issued discharge.

4.  As for his prior discharge, the applicant immediately reenlisted on 2 July 1982.  At that time, a DD Form 214 was not issued for an immediate reenlistment.

5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

6.  The applicant may find information useful in obtaining his records by utilizing the National Archives web site at www.archives.gov/veterans.



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)                                         AR20080017458



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ABCMR Record of Proceedings (cont)                                         AR20080017458



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