IN THE CASE OF:	  

		BOARD DATE:	        26 February 2009

		DOCKET NUMBER:  AR20080019162 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge. 

2.  The applicant states that his discharge was inequitable because it was based on a single isolated incident within 38 months of service with no other adverse actions.  He also states that he had an honorable discharge prior to his reenlistment and that he does not think it is right to be denied help from the Government over one incident.  

3.  The applicant did not provide any additional documentary evidence 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 27 November 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 12B (Combat Engineer).  He also executed a 6-year reenlistment in the Regular Army on 19 November 1981.  The highest rank/grade the applicant attained during his military service was sergeant (SGT)/E-5.

3.  His awards and decorations include the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), the Marksman Marksmanship Qualification Badge with Grenade Bar, the Army Service Ribbon, and the Good Conduct Medal.  

4.  The applicant’s records show he was assigned to Germany on 25 August 1983.  On 1 October 1983, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the rolls of the Army on 31 October 1983.  He subsequently surrendered to military authorities at Redstone Arsenal, Alabama on 17 January 1984. 

5.  On 23 January 1984, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 31 October 1983 until on or about 17 January 1984.

6.  On 25 January 1984, 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, 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 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 30 January 1984, the applicant's immediate commander recommended approval and remarked that the applicant’s conduct rendered him triable by a court-martial under circumstances which could have led to a bad conduct or a dishonorable discharge.  Based on his previous record, punishment was expected to have a minimal rehabilitative effect and discharge was in the best interest of all concerned.  He further recommended a discharge under other than honorable conditions.

9.  On 30 January 1984, the applicant’s intermediate commander remarked that the applicant’s apathetic attitude rendered him unfit for further military service and that his actions indicated that any rehabilitative efforts would have failed to make him a productive Soldier.  He further recommended a discharge under other than honorable conditions.

10.  On 6 February 1984, 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 that he be reduced the lowest enlisted grade.  On
22 February 1984, the applicant was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge 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
4 years, 11 months, and 10 days of creditable active military service and had 108 days of lost time due to AWOL.

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.  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 to general, under honorable conditions.

2.  The applicant’s records show he was charged with the commission of an offense 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.  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 a general, under honorable conditions 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)                                         AR20080019162



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ABCMR Record of Proceedings (cont)                                         AR20080019162



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