IN THE CASE OF: 

		BOARD DATE:	        22 January 2009

		DOCKET NUMBER:  AR20080017991


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 be upgraded.

2.  The applicant states, in effect, that he was not in the right frame of mind and was undergoing a family crisis.  He argues that he should have been offered help and not a bad discharge.  He concludes that gave his country honorable service from 1981 through 1985 and should have received proper legal counseling before his decision.

3.  The applicant provides no additional documentary 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 initial enlistment contract shows he enlisted in the U.S. Army Reserve Delayed Entry Program on 21 February 1981 and in the Regular Army on 28 December 1981.  On 16 July 1984, the applicant extended his enlistment for a period of 21 months.  He reenlisted on 28 May 1986 for 6 years.

3.  A DD Form 458 (Charge Sheet), dated 4 September 1992, shows the applicant went absent without leave (AWOL) on or about 1 April 1992 and returned to military control on or about 31 August 1992.

4.  On 4 September 1992, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable.  He further indicated that his defense counsel explained to him to his complete understanding and satisfaction, all the legal and social ramifications of that type of discharge and what it will mean to him in the future.

5.  On 17 September 1992, 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 discharged with an under other than honorable conditions characterization of service and be reduced to the lowest enlisted grade.  On 7 October 1992, the applicant was discharged with an undesirable discharge characterized as under other than honorable conditions.  The applicant had completed a total of 10 years, 4 months, and 10 days of creditable active service with 152 days of lost time due to AWOL.

6.  The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 10 February 1997.

7.  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, 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

8.  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.

9.  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's request for a discharge upgrade has been carefully considered and determined to be without merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations in which the applicant must admit guilt of the charges.

3.  The available evidence shows the applicant had 152 days of lost time due to being AWOL.  Based on this indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general under honorable conditions discharge or an honorable discharge.

4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the characterization of and reason for the applicant's discharge were both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.

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)                                         AR20080014263



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ABCMR Record of Proceedings (cont)                                         AR20080017991



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