IN THE CASE OF:	

		BOARD DATE:	      7 April 2009

		DOCKET NUMBER:  AR20080019904 


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 discharge under other than honorable conditions be upgraded to honorable.
   
2.  The applicant states, in effect, that he wanted to serve and defend his country.  He contends that his discharge was not handled right and that he should have had an honorable discharge because he came back and stayed until it was time to go home.  He knows that he did not do as he should have and now regrets not staying in the Army.  He further states that he and his wife are sick and need to have his discharge upgraded to receive Department of the Veterans Affairs (VA) benefits.

3.  The applicant provides, in support of his application, copies of his DD Form 214 and an enrollment letter in the VA health care system. 

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.  On 23 January 1979, the applicant enlisted in the Regular Army for 4 years.  He completed his initial training and was awarded military occupational specialty (MOS) 31N (Tactical Circuit Controller).

3.  On 11 July 1979, the applicant was assigned for duty with Company B, 
5th Signal Battalion, Fort Polk, Louisiana.  

4.  On 15 August 1979, the applicant was absent without leave (AWOL).  He was apprehended by civil authorities on 3 November 1979.  On 13 November 1979, he was returned to military control and transported to Fort Bragg, North Carolina.

5.  On 14 November 1979, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 15 August 1979 to on or about 2 November 1979.

6.  On 20 November 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily 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 trial by court-martial.

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his 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 (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 10 December 1979, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 17 December 1979, the applicant was discharged accordingly.  He had completed a total of 8 months and 7 days of creditable active military service and had accrued approximately
78 days of time lost due to AWOL.
9.  On 5 December 1983, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.  

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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.   Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

12.  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.

13.  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 contends that his discharge was not handled right and that he should have received an honorable discharge.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  


3.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

4.   The applicant's desire to qualify for VA benefits is not a valid basis for upgrading his discharge.

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 the aforementioned requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20080019904



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ABCMR Record of Proceedings (cont)                                         AR20080019904



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