IN THE CASE OF:	  

		BOARD DATE:	        9 April 2009

		DOCKET NUMBER:  AR20090000338


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge (GD) or an honorable discharge (HD).

2.  The applicant states he is trying to get his life back together.  Recently he lost his job and is unemployed, he lost his home through foreclosure, he filed for bankruptcy, and his wife of 28 years divorced him.  He states he needs help and a discharge upgrade would be a start along the road to recovery.

3.  The applicant provides two DD Forms 214 (Certificate of Release or Discharge from Active Duty) and a statement.

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 in the Regular Army on 10 October 1975.  He trained in military occupational specialty (MOS) 11C (Indirect Fire Infantryman) and he had assignments at Fort Bliss, TX, and in Germany.  On 6 June 1979, he was honorably discharged for the purpose of immediate reenlistment.  He completed 3 years, 7 months, and 27 days of creditable active Federal service.

3.  After reenlisting, the applicant returned from Germany to the United States and an assignment at Fort Hood, TX.  On 23 February 1981, the applicant departed his unit in an absent without leave (AWOL) status.  He remained absent for almost 5 years before returning to military control.

4.  The applicant was returned to military control at Fort Ord, CA, and assigned to the Personnel Control Facility.  Court-martial charges were preferred against him for a violation of Article 86, Uniform Code of Military Justice, in that he absented himself from his unit without authority from on or about 23 February 1981 until on or about 28 December 1985, a total of 1,769 days.

5.  On 15 January 1986, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10, in lieu of trial by court-martial.  He acknowledged he was guilty of the charge against him which authorized the imposition of a bad conduct or dishonorable discharge, and that he did not desire further rehabilitation, nor had any desire for further military service.  He stated that he understood the nature and consequences of the undesirable discharge that he might receive.  He declined to submit a statement in his own behalf.

6.  The applicant’s request for discharge was accepted and, on 14 July 1986, the approving authority approved his discharge UOTHC.  He was placed on excess leave without pay while awaiting his discharge.  On 5 August 1986, he was separated with a UOTHC discharge under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial.

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



8.  Army Regulation 635-200 describes the conditions for issuance of a discharge under honorable conditions, stating:

	a.  Paragraph 3-7a states that an HD 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.

	b.  Paragraph 3-7b states that a GD 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 HD.  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 requests a discharge upgrade.

2.  The applicant was a career Soldier on his second enlistment.  He went AWOL and remained absent for 1,769 days.  Upon his return, he faced court-martial charges which could have resulted in a Federal felony conviction and receipt of a bad conduct or dishonorable discharge.

3.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

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)                                         AR20090000338





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ABCMR Record of Proceedings (cont)                                         AR20090000338



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