IN THE CASE OF:	

		BOARD DATE:	       19 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018581 


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 1995 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states he already had one “honorable discharge” and had a good record up until he was separated.  He also states that he has two or three Army Achievement Medals and Army Commendation Medals.  He also notes he served in “Desert Storm.”

3.  The applicant provides no 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.  Records available to the Board indicate the applicant initially entered military service in 1987 as a member of the Army National Guard.  He was released from the Army National Guard and enlisted in the Regular Army on 3 July 1990.  He was deployed to Southwest Asia in support of Operation Desert Shield/Desert Storm between October 1990 and April 1991.  By November 1991 he had been promoted to the rank of specialist (SPC)/E-4.

3.  In September 1994 he was awarded an Army Good Conduct Medal for the period 3 July 1990 to 2 July 1993.  His records reflect no other personal decorations.

4.  The applicant served a successful tour of duty in Germany between January 1992 and January 1995.

5.  On 18 May 1995 the applicant failed to return from ordinary leave and was placed in an AWOL (absent without leave) status.  He was dropped from the rolls of the Army on 17 June 1995 and was subsequently apprehended by civilian authorities on 21 September 1995 and returned to military control on 
22 September 1995.

6.  On 27 September 1995, a Charge Sheet (DD Form 458) was prepared charging the applicant with one specification of AWOL from 18 May 1995 to 
22 September 1995.

7.  On 28 September 1995, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Department of Veteran Affairs.  He elected not to submit a statement in his own behalf and was placed in an excess leave status effective 28 September 1995.

8.  On 20 November 1995, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 


9.  The applicant was discharged on 14 December 1995, under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He was credited with 5 years, 4 months, and
12 days of total active service, including his brief period of active duty in 1987 while undergoing training as a member of the Army National Guard.  He had more than 120 days of lost time due to AWOL.  

10.  In 1998 the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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 trial by court-martial.  At that time, an under other than honorable conditions discharge was normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant’s argument that he his service was good up until his discharge has been noted.  Such service is evident the applicant was capable of honorable service and his subsequent misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.  

3.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would jeopardize his rights.

4.  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)                                         AR20080018581



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018581



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1