IN THE CASE OF:	

		BOARD DATE:	21 April 2009  

		DOCKET NUMBER:  AR20090000257 


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 an honorable discharge.

2.  The applicant states that he was 17 years of age when he enlisted and was unable to cope with military life.  He adds that he completed basic combat and advanced individual training and performed parachutist duty for almost a year before he was talked into taking a discharge under chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Separations) without any help from counsel.   

3.  The applicant did not provide any additional documentary evidence in support of his request.   

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 was born on 6 January 1962 and enlisted in the U.S. Army Reserve (USAR) at 17 years of age on 19 March 1979.  He subsequently entered active duty for training on 23 March 1979, completed basic combat and advanced individual training, and was awarded military occupational specialty (MOS) 57E (Laundry and Bath Specialist).

3.  On 21 May 1979, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for shoplifting at the Fort Lee, VA Main Post Exchange.  His punishment consisted of a forfeiture of $150.00 pay per month for 6 months, of which $75.00 was suspended for 6 months; 50 days of restriction, of which 40 days was suspended for 3 months; and 40 days of extra duty, of which 30 days was suspended for 3 months.

4.  The applicant was released from ADT to the control of his USAR unit on
3 August 1979.  The applicant’s records further show he enlisted in the Regular Army for a period of 3 years on 7 February 1980.  He was subsequently assigned to the 62nd Supply and Service Company, Fort Hood, TX.

5.  On 13 May 1980, the applicant departed his unit in an absent without leave (AWOL) status.  He remained in this status for 19 days before he surrendered to his unit on 31 May 1980.

6.  On 21 June 1980, the applicant again departed in an AWOL status and was subsequently dropped from the rolls (DFR) of the Army on 21 July 1980.  He was apprehended by civil authorities in Dallas, TX, and returned to military control at Fort Sill, OK, on 23 July 1980.  

7.  On 7 August 1980, court-martial charges were preferred against the applicant for two specifications of being AWOL during the period from on or about 13 May 1980 through on or about 31 May 1980 and from on or about 21 June 1980 through on or about 23 July 1980.  

8.  On 8 August 1980, 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 an under other than honorable conditions discharge, the maximum permissible punishment authorized under the 

UCMJ, 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.

9.  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 an under other than honorable conditions discharge.  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. 

10.  On 15 August 1980, the applicant's immediate commander recommended approval of the applicant’s discharge with the issuance of an under other than honorable condition discharge.  He further remarked that the applicant had not been able to adjust to military life and rehabilitation efforts were considered futile.

11.  On 19 August 1980, 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 be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 18 September 1980.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows, in effect, he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 5 months and 21 days of creditable active service and had 50 days of lost time due to AWOL.

12.  There is no indication that the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s
15-year statute of limitations. 

13.  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.

14.  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.

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

2.  The evidence of record shows that the applicant was 17 years of age at the time he enlisted in the USAR.  He was 18 years of age when he enlisted in the Regular Army and committed his offenses that led to his discharge.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence, that shows his repeated patterns of misconduct and indiscipline were the result of his age.

3.  The applicant’s record shows he was charged with the commission of offenses 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.



4.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 did not submit evidence that would satisfy that requirement.  

5.  Based on his record of indiscipline, the applicant's service clearly does 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 either a general, under honorable conditions discharge or an honorable 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.



      _________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)                                         AR20090000257



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ABCMR Record of Proceedings (cont)                                         AR20090000257



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