IN THE CASE OF:	

		BOARD DATE:	  24 February 2009

		DOCKET NUMBER:  AR20080018189 


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 an upgrade of his discharge. 

2.  The applicant states that he was absent without leave because he was hospitalized after someone tried to rape him while he was asleep in the barracks.  The applicant also states that he believes his punishment was too harsh and that he was told his discharge would be automatically upgraded six months after his discharge.  

3.  The applicant provides a letter from the local Director of Veterans Services attesting to the applicant’s current upstanding and respected status as a member of the community 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 Regular Army on 
7 March 1974.  He completed basic combat and advanced individual training 
and was awarded the military occupational specialty of unit armorer/supply specialist.  The highest rank he attained while serving on active duty was private first class (PFC)/pay grade E-3.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  The applicant accepted nonjudicial punishment (NPJ) under the provisions of Article 15 of the Uniform Code of Military Justice on five occasions between 
4 September 1974 and 13 October 1976 for being absent without leave during the periods 3-4 September 1974, 20-26 December 1974, and 26-31 August 1976, and for failure to be at his appointed place of duty on 7 April 1975 and 
26 March 1976.

4.  On 17 June 1977, the applicant was informed that charges had been preferred against him for being absent without leave during the period 
29 November 1976 to 10 June 1977.

5.  On 17 June 1977, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10 (for the good of the service – in lieu of court-martial).  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 further acknowledged that he had consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice.

6.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He 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.  On 28 June 1977, the separation authority approved the applicant's request for discharge and directed that he be furnished an Other Than Honorable Conditions Discharge Certificate.  On 6 July 1977, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active 



Duty) issued to the applicant confirms he completed a total of 2 years, 
8 months, and 20 days of creditable active military service and he had 244 days of lost time primarily due to being absent without leave.

8.  On 12 November 1985, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

9.  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.  An under other than honorable conditions discharge is normally considered appropriate.

10.  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.

11.  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 records show that he had 244 days of lost time primarily due to being absent without leave.  The applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant admitted guilt to the offense for which he was charged and voluntarily requested discharge in lieu of trial by court-martial.
  
2.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.
3.  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.

4.  The Army does not have, and has never had, a policy to automatically upgrade a discharge based on the passage of time.

5.  The applicant's commendable post service record has been carefully considered.  His account of the things that happened to him while he was on active duty were also considered.  While he claims these events led to him going into an absent without leave status, he has not submitted any documentation to support his contentions.  Therefore, he has not sufficiently established a basis for upgrading his discharge.

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)                                         AR20080018247



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ABCMR Record of Proceedings (cont)                                         AR20080018189



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