IN THE CASE OF:	  

		BOARD DATE:	        24 March 2009

		DOCKET NUMBER:  AR20080018856 


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 a general under honorable conditions discharge.

2.  The applicant states, in effect, that he was a young man with problems.  He argues that he is now disabled due to back problems.  

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty); an undated self-authored statement; a self-authored statement, dated 23 July 1980; and two character reference statements 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 record shows he enlisted in the Army National Guard (ARNG) on 15 February 1975 for six years.  On 19 March 1978, he was discharged from the ARNG due to unsatisfactory performance (unexcused absences) and involuntarily ordered to active duty in accordance with the governing regulation at the time.  The applicant's DD Form 214 shows he entered active duty on 
20 March 1978.  

3.  A DA Form 4187 (Personnel Action) shows the applicant departed absent without leave (AWOL) on 18 September 1978 and surrendered to his assigned unit on 29 September 1978.

4.  A DA Form 4187 shows the applicant again departed AWOL on 2 October 1978, he was dropped from the rolls of the Army on 2 November 1978, he was apprehended and confined by civil authorities on 2 December 1979, and he was released to military control on 4 December 1979.

5.  A DD Form 458 (Charge Sheet) shows he was charged with AWOL from on or about 2 October 1978 until on or about 2 December 1979.

6.  On 12 December 1979, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate; that he might be ineligible for many or all benefits administered by the Veterans Administration (VA) (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

7.  On 27 December 1979, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of court-martial under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  On 9 January 1980, the applicant was discharged with a characterization of service of under other than honorable conditions.  The applicant had completed a total of 7 months and 9 days of creditable active service with approximately 435 days of time lost due to AWOL.


8.  The Army Discharge Review Board denied the applicant's request for an upgrade of his discharge on 3 November 1981.

9.  The applicant provided two character reference statements, which are dated 23 July 1980, that essentially state the applicant was a very capable worker, a humble man, and a gentleman.

10.  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.

11.  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.

12.  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 request for a discharge upgrade has been carefully considered and determined to be without merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations, in which the applicant must admit guilt of the charges.

3.  The available evidence shows the applicant had approximately 435 days of lost time due to being AWOL.  Based on this indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general under honorable conditions or an honorable discharge.
4.  Lacking evidence to the contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the characterization of and reason for the applicant's discharge were both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.

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)                                         AR20080018856



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ABCMR Record of Proceedings (cont)                                         AR20080018856



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