IN THE CASE OF:	

		BOARD DATE:	  9 April 2009

		DOCKET NUMBER:  AR20080018176 


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 discharge under other than honorable conditions be upgraded to a honorable discharge.

2.  The applicant states, in effect, that at the time of his discharge he wanted to remain in the service, but he needed to care for his grandmother.  He also states that he was told his discharge would be upgraded to a general discharge under honorable conditions after 6 months.

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 records show he enlisted in the United States Army Reserve on 1 August 1980.  

3.  The applicant entered initial active duty for training on 26 September 1980.  While attending basic training, the applicant departed absent without leave (AWOL) on 13 November 1980.  He was apprehended by military authorities on 21 January 1981 and charges were preferred against the applicant for this period of AWOL on 27 January 1981. 

4.  On 30 January 1981, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for stealing a calculator valued at about $50.00 from a Colonel on 27 January 1981.

5.  On 27 February 1981, the applicant voluntarily requested discharge for the good of the service under the provisions of paragraph 10, Army Regulation
635-200 (Personnel Separations) due to charges that had been preferred against him under the Uniform Code of Military Justice, each of which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that are attached to it.  He acknowledged that by submitting the request for discharge that he was guilty of the charge against him or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct discharge or dishonorable discharge.  He also indicated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

6.  The applicant acknowledged that he had consulted with counsel and that he was fully advised of the nature of his rights under the Uniform Code of Military Justice.  The applicant further acknowledged he understood that if his discharge request was approved he may be discharged under conditions other than honorable and that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  He also acknowledged that he understood there is no automatic upgrade or review of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if he wished a review of his discharge.  He further acknowledged that the act of consideration by either board did not imply that his discharge would be upgraded.

8.  The applicant's request for discharge was approved by the appropriate authority on 20 February 1981.
9.  Accordingly, on 16 March 1981, the applicant was discharged under the provisions of paragraph 10, Army Regulation 635-200 with an Administrative Discharge for Conduct Triable by Court-Martial.  The DD Form 214 the applicant was issued shows his characterization of service was under other than honorable conditions.  He had completed 1 month and 26 days of active duty service and he had 69 days of lost time due to being AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 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.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.  

13.  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 accepted NJP for stealing and he voluntarily requested a discharge under the provisions of Army Regulation 635-200, paragraph 10 to avoid trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.



2.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or a honorable discharge.

3.  The Army does not have, and has never had, a policy to automatically upgrade a discharge based on the passage of time each case is considered on a case by case basis when a request is made.

4.  The applicant has not submitted any evidence to support his contention that his grandmother was ill.  Even if so, it would not be sufficient to warrant upgrading a properly issued discharge.  The Army has provisions to help Soldiers experiencing hardship situations.  There is no evidence that the applicant requested assistance through his chain of command.

5.  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)                                         AR20080018176



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ABCMR Record of Proceedings (cont)                                         AR20080018176



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