BOARD DATE:	  16 July 2009

		DOCKET NUMBER:  AR20090000340 


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 either a general, under honorable conditions, or to a fully honorable discharge.

2.  The applicant requests that a records review of his discharge based on his military personnel file and any additional documentation submitted by him be conducted, and he states that neither he or counsel would appear before the Board.

3.  The applicant submitted no 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 enlisted in the Army Reserve on 29 June 1979, and he enlisted in the Regular Army on 27 July 1979.  He successfully completed one station unit training at Fort Sill, Oklahoma, and upon completion of his training he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).

3.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was advanced to the rank and pay grade of Private, E-2, on 1 April 1981.  This was the highest rank that he attained.  The record contains no documented acts of valor or significant achievement. 

4.  Item 21 (Time Lost), of the applicant's DA Form 2-1 shows he was absent without leave from his unit from 19 June 1980 through 26 June 1980, from 7 February 1981 through 8 February 1981, and from 20 April 1981 through 4 October 1981.

5.  On 14 October 1981, court-martial charges were brought against the applicant for absenting himself without authority from his unit from 20 April 1981 and remaining so absent until 5 October 1981.  The applicant was informed of the charges against him on the same date.

6.  On 14 October 1981, the applicant underwent a mental status evaluation.  The applicant's behavior was found to be normal.  He was found to be fully alert and fully oriented.  His mood or effect was unremarkable, and his thinking process was clear.  His thought content was normal and his memory was good.  The mental status evaluator found him to be mentally responsible, considered him to have the mental capacity to understand and participate in separation proceedings and to meet the retention standards of Army Regulation 40-501, Chapter 3.

7.  On 15 October 1981, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), Chapter 10, for the good of the service.  In his request for discharge, the applicant stated he understood that he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

8.  The applicant stated he was making a request for discharge of his own free will and had not been subjected to coercion by any person.  The applicant stated he had been advised of the implications that were attached to his request and, moreover, he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.

9.  The applicant acknowledged that prior to completing his request for discharge, he had been afforded the opportunity to consult with appointed counsel for consultation who had fully advised him of the nature of his rights under the UCMJ.  He stated that although counsel had furnished him legal advice, the decision to seek discharge was his own.

10.  The applicant acknowledged he understood that if his request was accepted, he could be discharged under other than honorable conditions and furnished an Under Other than Honorable Conditions Discharge Certificate.  He acknowledged he understood that as a result of the issuance of such a discharge he could be deprived of all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if issued an under other than honorable conditions discharge.

11.  The applicant was advised that he could submit a statement in his own behalf which would accompany his request for discharge.  The applicant indicated he wished to submit a statement with his request but he did not desire a separation physical examination.

12.  In his statement, the applicant stated, in effect, that he was requesting discharge based on his moral beliefs.  He added that he believed that no man should threaten the well being of another and that we should love our neighbors and forgive those who trespass against us.  He summarized by stating that being a part of the military or any type of combat-oriented organization had threatened his mental and physical state of well-being.

13.  The applicant's unit commander recommended approval for his discharge for the good of the service.  The applicant, the commander stated, had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and based on his record, punishment could be expected to have a minimal rehabilitative effect.  He believed that discharge would be in the best interest of all.  The unit commander recommended a discharge under other than honorable conditions.

14.  The commander of the Lightning Brigade, US Army Personnel Control Facility, US Army Armor Center, Fort Knox, Kentucky, recommended approval of the applicant's request for discharge, and he also recommended the applicant be issued a discharge under other than honorable conditions.
15.  On 29 October 1981, the applicant's discharge for the good of the service was approved by the appropriate authority.  The approving authority directed that the applicant be issued a discharge certificate under other than honorable conditions.

16.  On 2 December 1981, the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10.  The narrative reason for separation entered on the applicant's DD Form 214 was Administrative Discharge Conduct Triable by Court-Martial.  The applicant's service was characterized as under other than honorable conditions.  On the date of the applicant's discharge, he had completed 1 year, 10 months, and 11 days of net active service with lost time from 19 June 1980 through 26 June 1980, from 7 February 1981 through 8 February 1981, and from 20 April 1981 through 4 October 1981. 

17.  The applicant applied to the Army Discharge Review Board (ADRB) for      an upgrade of his discharge within its 15-year statute of limitations and, on         11 February 1997 he was notified that after careful consideration of his military record and all other available evidence, the ADRB had determined that he had been properly and equitably discharged.

18.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges had been preferred.  An under other than honorable conditions discharge was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge be granted if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

19.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

20.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit evidence that would satisfy this requirement.

2.  The evidence shows the applicant repeatedly absented himself without leave from his unit.  In his last absence without leave, he remained away from his unit for the period from 20 April 1981 through 4 October 1981.  Court-martial charges were brought against him for this absence.

3.  The applicant voluntarily requested discharge under the provision of Chapter 10, Army Regulation 635-200 for the good of the service - to avoid trial by court-martial.  He acknowledged that he was making the request of his own free will without coercion.  The applicant stated he had been advised of the implications that were attached to his request and he had no desire to perform further military service.

4.  It appears the applicant's entire record of service was fully considered by his command before a recommendation was made for approval of the applicant's request for discharge and before a recommendation was made as to the type of discharge he was to be issued.  The applicant had a history of and was prone to absent himself without leave and in his commander's opinion, punishment could be expected to have a minimal rehabilitative effect; therefore, the commander believed that discharge would be in the best interest of all.

5.  The applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, in lieu of court-martial, at his request.  The applicable regulation shows that the characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of this prior to making his request.

6.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge to a general or to a fully 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)                                         AR20090000340





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000340



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1