IN THE CASE OF:	  

		BOARD DATE:	        24 February 2009

		DOCKET NUMBER:  AR20080018914 


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 he was given an under other than honorable discharge because of 137 days of excess leave.  He adds that he has just found out that by law, the Department of Veterans Affairs may grant him benefits if the period of absence is less than 180 days and the character of service is honorable.

3.  The applicant provides copies of two letters of appreciation, dated 25 June 1979 and 9 July 1979, in support of his request.

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 30 August 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 68H (Aircraft Pneudraulics Repairer).  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant’s records further show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of distinction or achievements during his military service.

4.  On 29 March 1980, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls (DFR) on 27 April 1980.  He was ultimately apprehended by civil authorities and returned to military control in San Francisco, California, on 27 July 1981.

5.  On 4 August 1981, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 29 March 1980 through on or about 27 July 1981.

6.  On 4 August 1981, 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 Uniform Code of Military Justice (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 (AR) 635-200 (Personnel Separations).

7.  In his request for discharge, the applicant indicated 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 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 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 24 September 1981, the applicant’s immediate commander remarked that the applicant’s pattern of behavior indicated that retention was neither practical nor desirable.  He added that the applicant went AWOL because he was disgusted with the Army and desired a discharge because he felt he could do better as a civilian.  He further recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate. 

9.  On 29 September 1981, the applicant's senior commander also recommended approval of the applicant's discharge with an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 30 October 1981, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of AR 635-200.  He ordered the applicant’s immediate reduction to the lowest enlisted grade and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 21 December 1981, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with an under other than honorable conditions character of service.  This form further confirms the applicant had completed a total of 1 year, 11 months, and 22 days of creditable active military service and had 484 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.  AR 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.  AR 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.  AR 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 upgraded.

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 AR 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Contrary to the applicant's contention that he was discharged because of his 137 days of excess leave, the applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  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.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  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 did not submit evidence that would satisfy that requirement.  Based on his 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, the applicant is not entitled to either a general or an honorable discharge. 

4.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised to contact his local/regional Department of Veterans Administration representative to inquire about benefits and the criteria to apply for such benefits.

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.



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               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)                                         AR20080018914





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ABCMR Record of Proceedings (cont)                                         AR20080018914



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