IN THE CASE OF:	  

		BOARD DATE:	       24 February 2009

		DOCKET NUMBER:  AR20080019234 


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 discharge be upgraded to general.

2.  The applicant states that he was not a bad Soldier he just had problems at home (state-side).  He never should have left Germany.  That was when it all went wrong.  He was a good Soldier.  He followed orders and did what he had to do.  He knows he went wrong, but if he knew then what he knows now he never would have left the Army.   

3.  The applicant provides copies of his DD Form 214 (Certificate of Release or Discharge from Active  Duty) and his discharge certificate and a check list of suggested discharge upgrade issues on which he has checked the following:

	a.  My average conduct and efficiency ratings/behavior and proficiency marks were good (or pretty good).

	b.  I received awards and decorations.

	c.  My record of promotions showed I was generally a good service member.

	d.  I had a prior Honorable Discharge,

   e.  I have been a good citizen since discharge.
   
   f.  My ability to serve was impaired because of marital and family and child care problems.

	g.  Personal problem impaired my ability to serve.

	h.  The punishment I got at discharge was too harsh - it was much worse than most people got for the same offense.

	i.  When I got back from overseas, I just could not adjust to state-side duty.

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 on 1 March 1977.  He completed training in military occupational specialty 63F as a heavy equipment operator  and was posted to Germany on 9 July 1977.  He was advanced to pay grade E-2 on 1 September 1977 and to pay grade E-3 on 1 December 1978 .  

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 10 July 1978 and 16 May 1979.  On 31 July 1979, he returned to the United States and he reenlisted on 30 October 1979.

4.  He was absent without leave (AWOL) from 24 July 1980 to 22 May 1984 , a period that lacks only 2 months of being 4 years.

5.  The details of the separation process are not contained in the available records.  On 29 June 1984 the applicant was separated with an under other than honorable conditions discharge under the provisions of Army Regulation 635-200, chapter 10.  He had completed 3 years 6 months and 29 days of creditable service.   


6.  Army Regulation 635-200 (Personnel Separations) 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.

7.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A bad conduct or dishonorable discharge and up to 1 year of confinement punitive are authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

8.  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.

9.  Paragraph 3-7b of the regulation 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.

10.  The is no indication in the available records that the applicant applied to the Army Discharge Review Board during the 15 year eligibility period.

DISCUSSION: 

1.  The applicant states that he was a good Soldier in Germany but that he could not adjust to state-side duty and the distractions and demands of family life.   

2.  The applicant's service was undistinguished, at best.  When he reenlisted after 2 years and 9 months of service he was still serving only in pay grade E-3.   

3.  The items indicated on the prepared check-list of excuses does nothing to demonstrate an injustice in the discharge.  Considering, that the Table of Maximum Punishments shows that a trial by court-martial could have resulted in a punitive discharge and up to one year in confinement for his 4-year AWOL, the requested separation the applicant received was actually quite lenient and considered appropriate based upon the misconduct.   

4.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time. The character of the discharge is commensurate with his overall record.

5. In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.
  
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)                                         AR20080019234





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ABCMR Record of Proceedings (cont)                                         AR20080019234



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