IN THE CASE OF:	  

		BOARD DATE:	        18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018365 


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 (UOTHC) discharge be upgraded to an honorable discharge.  

2.  The applicant states that he was in fear of his life because of threats made against him by his fellow Soldiers and noncommissioned officer (NCO) staff.  He states he was very young at that time and was naïve to many of the rules and regulations of military life.  He tried various times to transfer from his unit but it was denied.  He states the NCOs would come to the barracks drunk and look for fights.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 enlisted in the Regular Army on 29 January 1980 for a period of three years.  He was 17 years old at the time of his enlistment.  At the completion of basic training and advanced individual training, he was awarded military occupational specialty 91B (medical specialist).  He was advanced to private, 
E-2 in July 1980 and was assigned to Fort Polk, LA.  

3.  On 24 February 1982, charges were preferred against the applicant for being absent without leave (AWOL) from 3 November 1980 to 22 February 1982.  

4.  On 26 February 1982, the applicant consulted with legal counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the offense charged and acknowledged that he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if an UOTHC was issued.  He did not submit statements in his own behalf.  

5.  On 5 April 1982, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an UOTHC discharge.

6.  Accordingly, the applicant was discharged from active duty on 5 April 1982 under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with an UOTHC discharge.  He had completed 10 months and 18 days of active military service with 475 days of lost time due to being AWOL.

7.  There is no evidence which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  

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 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 UOTHC 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, 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 states he was in fear of his life because of threats made against him by fellow Soldiers and NCOs; however, there is insufficient evidence to substantiate his claims.

2.  The applicant also states that he was young and naïve to many of the rules and regulations of military life.  However, age is not a sufficiently mitigating factor for upgrading a discharge.  

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10 in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

4.  The applicant was advised of the effects of an UOTHC discharge.  He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

5.  The applicant's record of service shows he was AWOL for 475 days.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel for either a fully honorable or general discharge.  

6.  There is no evidence of record which indicates the actions taken in his case were in error or unjust, therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable.



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)                                         AR20080018365



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ABCMR Record of Proceedings (cont)                                         AR20080018365



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