IN THE CASE OF:	  

		BOARD DATE:	  19 March 2009

		DOCKET NUMBER:  AR20080018535 


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 under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states, in effect, that he was young and immature at the time and he is now trying to obtain Department of Veterans Affairs (VA) benefits.   

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and letters from his brother and friend.

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 military records show he enlisted in the Regular Army (RA), in pay grade E-1, on 30 September 1977, for 3 years.  On the date of his enlistment in the RA, the applicant was 19 years and 8 months of age (date of birth:              9 January 1958).  

3.  On 23 January 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on 10 January 1978.  His punishment included a forfeiture of $92.00 pay per month for one month.  He did not appeal the punishment.

4.  On 8 February 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty on 5 February 1978.  His punishment included a forfeiture of $92.00 pay per month for one month.  He did not appeal the punishment.

5.  The applicant was advanced to pay grade E-2 on 30 March 1978.  

6.  The applicant was reported absent without leave (AWOL) on 6 July 1978 and dropped from the rolls of his unit on 7 August 1978.  He was apprehended by civilian authorities on 29 January 1979 and held in confinement for outstanding traffic warrants.  He was returned to military control on 31 May 1979.

7.  On 9 July 1979, a DD Form 458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Control Facility, Fort Ord, California.  The applicant was charged with one specification of AWOL from 7 July 1978 to 1 June 1979.

8.  On 20 July 1979, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate and, as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the VA.  He waived his rights and did not submit a statement in his own behalf.

9.  On 6 August 1979, the applicant's unit commander recommended approval of the applicant's request.  The unit commander stated that the applicant was of no use to the military but he did not require a bad conduct discharge and confinement at that time.  The applicant could not be rehabilitated within the service and should be separated.  He recommended the applicant be issued an under other than honorable conditions discharge.

10.  On 20 July 1979, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1.

11.  The applicant was discharged on 14 August 1979, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of court-martial.  He was credited with 11 months and 15 days total active service and 350 days lost time from 7 July 1978 to 31 May 1979 due to AWOL.  

12.  The applicant’s record documents that the highest rank and pay grade he held on active duty was Private, E-2.  The record contains no documented acts of valor, achievement, or service warranting special recognition.

13.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

14.  The applicant submits two letters from his brother and friend wherein both individuals stated the applicant is an alcoholic and needed help.  The letters made no recommendations for upgrading the applicant's discharge.  

15.  Army Regulation 635-200 (Enlisted Separations), in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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 was normally considered appropriate.  

16.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 19 years and 8 months of age when he enlisted in the RA in 1977.  He was 20 when he went AWOL and was charged with one specification of being AWOL from 7 July 1978 to 31 May 1979. There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  Upon his return to military control, he voluntarily requested discharge in lieu of facing a court-martial.  The applicant elected not to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged.  

3.  The applicant also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the VA.  

4.  Contrary to the applicant's contentions, he has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge. The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable discharge or a general discharge.

5.  The Board acknowledges the applicant's desire to have his discharge under other than honorable conditions upgraded so that he can qualify for medical and/or other benefits administered by the VA and other Federal and State social services organizations; however, the Board does not grant relief solely for the purpose of qualifying an applicant for benefits administered by these agencies.

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
7.  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)                                         AR20080018535



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ABCMR Record of Proceedings (cont)                                         AR20080018535


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