IN THE CASE OF:	  

		BOARD DATE:	        21 January 2009  

		DOCKET NUMBER:  AR20080018242 


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, an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states that his under other than honorable conditions discharge needs to be looked at because of the honorable discharge he had received.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 15 April 1984, in support of 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's records show he enlisted in the Regular Army for a period of 3 years on 11 August 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records show he was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar.  His records do not show any achievements or significant accomplishments during his military service.

4.  On 13 October 1984, the applicant departed his Fort Benning, Georgia unit in an absent without leave (AWOL) status and was subsequently dropped from the rolls of the Army on 12 November 1984.  He subsequently surrendered to civil authorities in Pittsfield, Massachusetts and was returned to military control on
21 February 1985. 

5.  On 22 February 1985, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 13 October 1984 until on or about 21 February 1985.

6.  On 22 February 1985, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 



8.  On 1 March 1985, the applicant's immediate commander remarked that the applicant’s conduct had rendered him triable by court-martial under circumstances which could have lead to a bad conduct or dishonorable discharge and that the applicant had no further motivation for continued service and would not respond to either counseling or rehabilitation.  He added that the administrative burdens involved in the court-martial and possible confinement were not considered warranted in view of the nature of the offenses.  He further recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions character of service. 

9.  On 4 March 1985, the applicant’s intermediate commander recommended the request be approved with the issuance of an under other than honorable conditions character of service.

10.  On 26 March 1985, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 15 April 1985, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 1 year, 3 months, and 27 days of creditable active military service and had 130 days of lost time.

11.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.  

12.  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.

13.  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.

14.  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 his discharge should be looked at because of the honorable discharge that he received.

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  Although an honorable or general discharge is authorized with a voluntary request for discharge in lieu of trial by court-martial, a discharge under other than honorable conditions is normally considered appropriate.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  In order to justify correction of a military record, the applicant must show, 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.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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.


															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)                                         AR20080018242



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018242



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1