IN THE CASE OF:	  

		BOARD DATE: 	        18 June 2009

		DOCKET NUMBER:  AR20090000588 


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 an honorable discharge. 

2.  The applicant essentially states that he wishes to have his discharge upgraded to an honorable discharge so that he may be eligible for Department of Veterans Affairs (DVA) benefits, as he recently started having health issues.  He also states that he had a 2-year old boy and a 3-month old daughter at the time and that his baby brother was dying, which put him in a bad place.  He further contends that he was told he could not leave, but that he needed to see his dying brother.  Additionally, he essentially contends that he was young at the time and did not understand the impact of his discharge under other than honorable conditions, but that he has now changed.

3.  The applicant provides no additional 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 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 military records show that he enlisted in the Regular Army on 27 September 1977 at 21 years of age.  He completed basic and advanced individual training and was awarded military occupational specialty 45L (Artillery Repairer).  He was then reassigned to Fort Stewart, Georgia in February 1978.

3.  On 17 January 1979, the applicant went into an absent without leave (AWOL) status.  On 15 February 1979, he was dropped from the rolls of the Army and classified a deserter.  He remained in an AWOL status until he was apprehended by civil authorities in Dayton, Ohio on 12 April 1980 and returned to military control.  He was subsequently reassigned to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, Kentucky. 

4.  On 18 April 1980, the applicant underwent a mental status evaluation and he was psychiatrically cleared for any administrative action deemed appropriate by his chain of command. 

5.  On 22 April 1980, charges were preferred against the applicant for absenting himself from his organization at Fort Stewart, Georgia on or about 17 January 1979, and remaining so absent until 12 April 1980, an offense punishable under the Uniform Code of Military Justice (UCMJ).

6.  On 25 April 1980, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations Enlisted Personnel).  In his request, he acknowledged that he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

7.  In his request for discharge, the applicant acknowledged that he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any relevant lesser included offenses and to the maximum permissible punishment if found guilty.  He acknowledged he understood that although his legal counsel furnished him legal advice, the decision was his own.

8.  The applicant also acknowledged he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He further acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [now named the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued.  He elected to submit a statement in his own behalf.  

9.  The applicant indicated in the statement submitted in his own behalf that he was age 23, he had completed 12 years of school, and the reason that he joined the Army was because he was unemployed.  He also stated that he wanted out of the Army because his mother was very ill, he could not adjust to military life, and he had financial problems.  

10.  On 25 April 1980, the applicant was placed on excess leave.  On 13 May 1980, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, chapter 10, directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate and that he be reduced to the rank of private/E-1.  The applicant was discharged accordingly.

11.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 9 July 1980, the applicant was separated under the provisions of Chapter 10, Army Regulation 635-200, in lieu of trial by court-martial, after completing a total of 1 year, 6 months, and 18 days of creditable active military service and accruing 441 days of lost time.  



12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 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 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.

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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by 


court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

3.  The applicant's record of service shows that he went AWOL and was subsequently dropped from the rolls of the Army and classified a deserter.  It also shows that he only returned to military control after being apprehended by civil authorities.  Based on this 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, he is not entitled to either an honorable or general discharge.

4.  The fact that the applicant is attempting to obtain benefits from the DVA was considered.  However eligibility for veteran's benefits (to include DVA medical benefits) does not fall within the purview of this Board the DVA administers its benefits and programs under its own regulations and policies.  Furthermore, the Board does not grant relief solely for the purpose of gaining DVA benefits.

5.  The applicant contends that he was experiencing personal problems and the critical illness of his brother; however, there is no evidence which shows the applicant ever sought assistance from his chain of command or any external advocacy offices such as the American Red Cross or Army Community Services.

6.  The applicant's also contends that he was young at the time and did not understand the impact of his discharge under other than honorable conditions was considered.  Records show the applicant was over 21 years of age at the time of his entry into the Regular Army, and he was over 23 years of age at the time he voluntarily requested discharge.  There is no evidence which shows the applicant was any less mature than other Soldiers of the same age who successfully completed their service obligations.  Additionally, the applicant acknowledged during his discharge proceedings that his military counsel had explained to him all of the legal and social ramifications of receiving a discharge under other than honorable conditions.  

7.  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)                                         AR20090000588



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000588



6


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1