IN THE CASE OF:	  

		BOARD DATE:	        15 JANUARY 2009

		DOCKET NUMBER:  AR20080017782 


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 an honorable discharge or at least a general discharge.

2.  The applicant states, in effect, that when he went home from basic training he got a divorce and he had no one to watch his 10 year old son.  He goes on to state that he tried to get assigned stateside or get an honorable discharge.  He loves America and he made a choice not to abandon his son.  His son served 10 years in the Navy and received an honorable discharge.  He also states that he has never been in any trouble, he has passed the necessary background security checks, and he hauls the mail.  

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 was born on 31 May 1945 and was married with two dependents when he enlisted in the Regular Army on 30 September 1977 for a period of 4 years, training as a cannon crewman, assignment to the 193rd Infantry Brigade (in Panama at the time), and a cash enlistment bonus.  He was transferred to Fort Sill, Oklahoma to undergo his one-station unit training.

3.  He successfully completed his training and received orders on 1 December 1977 that transferred him to the 193rd Infantry Brigade in Panama with a report date of 5 January 1978.  He departed on leave on 20 December 1977.

4.  He failed to report as ordered to his new unit and was reported as being absent without leave (AWOL) on 5 January 1978.  He remained absent in a desertion status until he was apprehended by civil authorities on 20 July 1978 and was returned to military control at Fort Lewis, Washington.

5.  On 28 August 1978, he again went AWOL and remained absent in a desertion status until he returned to military control at Fort Ord, California on 18 September 1978 where charges were preferred against him for the two AWOL offenses.  The applicant was also counseled regarding possible application for a hardship discharge or compassionate reassignment, but indicated that he did not desire to make such an application.  He also indicated he did not like being away from home, that he wanted a discharge so he could go home and support his family and he further indicated that he would go AWOL again if returned to duty.  

6.  He also underwent a separation medical examination and indicated that his next of kin was his wife.

7.  On 21 September 1978, 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, 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 undesirable discharge, characterized as under other than honorable conditions, and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  
8.  The appropriate authority (a major general) approved his request on 23 October 1978 and directed that he be discharged under other than honorable conditions. 

9.  Accordingly, he was discharged under other than honorable conditions on 30 October 1978, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 5 months, and 24 days of total active service and had 217 days of lost time due to being AWOL.     

10.  There is no evidence in the available records to show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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.  A discharge under other than honorable conditions was then and still is normally considered appropriate.  

12.  Paragraph 3-7 of Army Regulation 635-200 (Enlisted Personnel) 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.  

13.  Paragraph 3-7 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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

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

3.  The applicant’s contentions have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his overall record of undistinguished service, the lack of mitigating circumstances at the time and the extensive length of his absences.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  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. 

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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.





      _______ _   _______   ___
               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)                                         AR20080017782



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ABCMR Record of Proceedings (cont)                                         AR20080017782



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