IN THE CASE OF:	  

		BOARD DATE:	        27 January 2009

		DOCKET NUMBER:  AR20080017827 


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 discharge be changed to an honorable discharge.

2.  The applicant states, in effect, he was too young and immature to handle his responsibilities and resolve his personal problems.  He adds his chain of command was not there for him, so he had nowhere to go for help.  He specifically states:

	a.  he was adopted as a child and was 17 years old when he enlisted;

	b.  he loved not being tied down on the farm and loved all the freedom he had at Fort Stewart, GA, where he maintained a room in the barracks, but lived off-post;

	c.  at 18 years of age, he became involved with a 17-year old girl.  She became pregnant, so they decided to marry; however her parents were opposed;

	d.  his girlfriend’s family moved and he attempted to get leave to go after his girlfriend, but his sergeant would not approve leave;

	e.  he went AWOL (absent without leave), thinking it was the right thing to do. Having been adopted and never having known his birth parents, he was determined that the same thing would not happen to his unborn child;

	f.  he was apprehended and placed in the Fort Bragg, NC, Correctional Custody Facility (CCF) for a while.  He became disappointed with the Army and chose to be discharged; and

	g.  it is now 27 years later and he is in prison, but he is trying to make a new start in life and he seeks forgiveness.

3.  The applicant provides:

	a.  an undated letter addressed “To Whom It May Concern”;

	b.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 8 April 1980 through 1 July 1981, a period of 11 months and 29 days.  It shows he was discharged under other than honorable conditions under the provisions of chapter 10, Army Regulation 635-200 [Personnel Separations – Enlisted Personnel], by reason of “ADMINISTRATIVE DISCHARGED (sic) - Conduct triable by court-martial.”  It also shows he had 85 days of lost time from 8 December 1980 through 2 March 1981; and

	c.  a DD Form 293 (Application for Review of Discharge or Dismissal 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 was born on 7 February 1963.  At age 17 years and 2 months he enlisted in the Regular Army on 8 April 1980 and he successfully completed all of his initial entry training.  He was awarded military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  He was assigned to Fort Stewart for duty with A Troop, 2nd Squadron, 9th Cavalry Regiment.

3.  On 8 October 1980, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being disrespectful in language toward a superior noncommissioned officer (NCO).  His punishment included placement in the CCF for 7 days, forfeiture of $112 per month for one month, and a suspended reduction to private (PV1)/E-1.  On 24 November 1980, the suspension of his reduction was vacated for reasons unknown and he was reduced to PV1.

4.  The applicant’s records show he went AWOL on 8 December 1980.  On 22 February 1981, he was apprehended by civil authorities in Mecklenburg County, NC, on charges of aggravated assault and assault with a deadly weapon inflicting injury.  On 3 March 1981, he appeared in Mecklenburg County District Court where he was convicted and sentenced to time served.  He was released to military authorities at Fort Bragg.

5.  The applicant was assigned to the U.S. Army Personnel Control Facility at Fort Bragg.  On 4 March 1981, court-martial charges were preferred against him for absenting himself from his unit without proper authority from on or about 8 December 1980 to on or about 3 March 1981.

6.  On 11 March 1981, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as 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.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide a statement on his own behalf.

7.  On 18 June 1981, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 1 July 1981, the applicant was discharged with a characterization of service of under other than honorable conditions.  He had completed 11 months and 29 days of creditable active service with 85 days of lost due to being AWOL.

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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is 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 635-200, 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 contends that he was too young and immature to serve and that his superiors were not there to help him.  However, he successfully completed all of his initial entry training and showed that he could function as a Soldier, thus there is no evidence he was any less mature than any other initial entry Soldier.  Furthermore, there is no evidence in his available records that shows he sought assistance from his chain of command, a chaplain or community support services personnel before going  AWOL.  There is also no evidence to show he went AWOL to resolve issues with a pregnant girlfriend.

2.  The evidence of record shows during an unauthorized absence in February 1981, the applicant was apprehended by civil authorities and convicted of aggravated assault with a deadly weapon.  The applicant's undated self-authored letter, submitted with his application in October 2008, indicates he was then incarcerated.  An internet check reveals he was assigned to the Palmer Pre-Release Center, Florence, SC, in October 2008, but has since been released.

3.  The applicant stated, in effect, 27 years have passed and he has learned from his mistakes.  He stated he wants to get back on his feet and a discharge 
upgrade would provide him that opportunity.  Unfortunately, these statements do not comport with the reality of his life, given the fact of his recent incarceration in the South Carolina Department of Corrections.

4.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.

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

___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)                                         AR20080017827



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ABCMR Record of Proceedings (cont)                                         AR20080017827



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