IN THE CASE OF:	  

		BOARD DATE:	  28 April 2009

		DOCKET NUMBER:  AR20090000386 


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, an upgrade of his discharge under other than honorable conditions to a general discharge under honorable conditions.

2.  The applicant states that he would like for the Board [Army Board for Correction of Military Records (ABCMR)] to upgrade his discharge to a general discharge under honorable conditions.

3.  The applicant provides no documentary evidence in support of this 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 ABCMR to excuse an appli-cant’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 insuf-ficient bases to waive the statute of limitations for timely filing.

2.  The applicant's record shows that he was a member of the U.S. Marine Corps Reserve from 17 March 1982 until 18 December 1983.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program on 19 December 1983 and enlisted in the Regular Army on 21 February 1984.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 19E (M48-M60 Armor Crewman).  The applicant served a period of continuous honorable active service from 21 February 1984 through 26 September 1986 and was granted an immediate reenlistment.  The highest rank he attained while serving on active duty was the rank of specialist four (SP4)/pay grade E-4.  However, at the time of separation he held the rank of private (PVT)/pay grade E-1.

3.  DA Forms 4187 (Personnel Action) show the applicant was reported absent without leave (AWOL) from his unit effective 27 October 1986 and remained absent until he surrendered and returned himself to military control at a Military Police Station located at Fort McPherson, Georgia, on 23 November 1986 following 27 days in an AWOL status.

4.  DA Forms 4187 show the applicant was reported AWOL from his unit effective 8 June 1987, dropped from the active duty rolls of his unit effective 9 June 1987, and remained absent until he was apprehended by military authorities in Atlanta, Georgia, on 27 March 1990 following 1,023 days in an AWOL status.

5.  Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 64-1, dated 4 April 1990, assigned the applicant to the installation's Special Processing Company effective 27 March 1990.

6.  A DD Form 458 (Charge Sheet), dated 2 April 1990, shows charges were preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) by being AWOL during the period 8 June 1987 until 27 March 1990.  The applicant was informed of this charge on 2 April 1990.

7.  U.S. Army Armor Center Form Letter (USAARMC-FL) 9575, dated 3 April 1990, subject:  Request for Discharge for the Good of the Service, shows 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.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  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 of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that 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 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 12 April 1990, the separation authority approved the applicant's request and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions.

9.  Headquarters, U.S. Army Personnel Control Facility, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 71-4, dated 16 April 1990, reduced the applicant in grade from PFC to PVT effective 12 April 1990.

10.  Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, Orders 84-42, dated 1 May 1990, assigned the applicant to the installation's U.S. Army Transition Point for transition processing.  This order also discharged the applicant under the provisions of Army Regulation 635-200 effective 15 May 1990.

11.  The record shows that on 15 May 1990 the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to him at the time confirms the applicant received an under other than honorable conditions characterization of service.  The DD Form 214 also shows the applicant had 1,050 days of lost time and was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of court-martial.  This form also shows that based on the authority and reason for his discharge, the applicant was assigned a separation program designator code of KFS in item 26 (Separation Code) and a reentry eligibility code of 3 in item 27 (Reentry Code).

12.  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.  At the time, a discharge under other than honorable conditions was normally considered appropriate.

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.

14.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to a general discharge under honorable conditions was carefully considered and determined to be without merit.

2.  The record shows that the applicant was AWOL on two occasions.  On the first occasion, the applicant was absent from his unit for 27 days.  On the second occasion, the applicant deserted his unit and remained absent for a period of 1,023 days.  The record also shows that he was dropped from the Army rolls prior to returning to military control.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Evidence shows that the applicant voluntarily 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 reflects his overall record of military service.

4.  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 a general 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 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.



      ___________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)                                         AR20090000386



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ABCMR Record of Proceedings (cont)                                         AR20090000386



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