IN THE CASE OF:	  

		BOARD DATE:	        18 FEBRUARY 2009

		DOCKET NUMBER:  AR20080019500 


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 under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that he had about 6 months left on his enlistment when he went absent without leave (AWOL) and he was under a lot of stress.  He goes on to state that he made a bad decision 20 years ago and while he regrets it, he cannot change it.  He continues by stating that he had gotten married and had a baby and his wife had a job and they lived off-post in an apartment.  His wife lost her job and they became financially bound.  He further states that he could not get any help from the Army and they were about to be evicted so he decided to move back to Ohio.  He also states that he did not try to hide; he simply got a job and eventually was located and returned to Fort Knox, Kentucky.  He closes by stating that he is proud of his service in the Army and if he could go back, he would not have done what he did.

3.  The applicant provides no additional documents with 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 was born on 27 December 1963 and was single when he enlisted in the Regular Army in Cleveland, Ohio on 9 October 1985, for a period of 3 years.

3.  He completed his one-station unit training (OSUT) at Fort Leonard Wood, Missouri and was awarded military occupational specialty (MOS) 12C (bridge crewman).  He was transferred to Fort Riley, Kansas on 18 February 1986.  He was advanced to the pay grade of E-2 on 9 April 1986 and to the pay grade of
E-3 on 9 October 1986.

4.  The applicant married in Manhattan, Kansas on 1 November 1986 and on
13 March 1987, his daughter was born.

5.  Although the reasons are not explained in the available records, the applicant was reduced to the pay grade of E-2 on 12 March 1987.

6.  On 1 June 1987, the applicant received a general officer memorandum of reprimand for driving while intoxicated (DWI).

7.  During the period from 16 December 1987 to 15 March 1988, the applicant had three 1-day periods of AWOL.  The record is silent as to the punishment imposed for those offenses.

8.  On 5 April 1988, he went AWOL and remained absent in desertion until he was apprehended by civil authorities in Pandora, Ohio on 9 November 1989 and was returned to military control at Fort Knox, where charges were preferred against him for the AWOL offense.  He also indicated at that time that he was divorced.

9.  On 20 November 1989, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone, and that he was aware of the implications 
attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive an under other than honorable conditions, and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

10.  The appropriate authority approved his request on 6 December 1989 and directed that he be discharged under other than honorable conditions.

11.  Accordingly, he was discharged under other than honorable conditions on 24 January 1990, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 8 months, and 9 days of total active service and had 586 days of lost time due to AWOL.  He was 26 years of age at the time of his discharge.

12.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  At the time, an under other than honorable conditions discharge was normally considered appropriate.

14.  Paragraph 3-7a of Army Regulation 635-200 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.  



15.  Paragraph 3-7b of Army Regulation 635-200 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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s record of service has been reviewed; however, his service is not sufficiently mitigating to warrant relief when compared to the nature of his misconduct.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

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.



      _______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)                                         AR20080019500



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080019500



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1