IN THE CASE OF:	  

		BOARD DATE:	        17 March 2009

		DOCKET NUMBER:  AR20090000816 


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:

The applicant defers to counsel.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests reconsideration of an earlier appeal that the applicant's under other than honorable conditions discharge be upgraded to an honorable discharge.  

2.  Counsel states that the applicant's discharge took place 28 years ago.  Counsel further states the applicant has moved on with his life and would like to move past the incident.  The discharge is adversely affecting the applicant's ability to gain employment.  He states that the applicant's discharge was inequitable as it was based on one isolated incident with no other adverse action.

3.  Counsel provides a DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 21 August 1980; General Educational Development test results, dated 29 September 1982; a self-authored statement from the applicant, dated 5 October 2008; four letters of support from family and associates; and a letter from Edmund, Green, and Robinson, Attorneys at Law, dated 19 November 2008.

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20080009153 on 21 August 2008.

2.  The applicant's contentions, through counsel, are new arguments which will be considered by the Board.  In addition, the evidence provided is new evidence which will be considered by the Board.

3.  The applicant enlisted in the Regular Army on 16 January 1979 for a 3-year term of service.  He successfully completed basic training and advanced individual training and was awarded military occupational specialty 11B (Infantryman).

4.  The evidence of record shows that the applicant was absent without leave (AWOL) for the period 23 April 1980 through 26 June 1980.

5.  The applicant's court-martial charge sheet is not available.

6.  The applicant's service personnel records do not contain the facts and circumstances surrounding his separation process.  However, his DD Form 214 shows that he was discharged on 21 August 1980 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) by reason of "administrative discharge conduct triable by a court-martial" and service characterized as "under other than honorable conditions."  The applicant completed 1 year, 5 months, and 1 day of creditable active service with 65 days of lost time due to AWOL.

7.  Counsel submitted a statement from the applicant, dated 5 October 2008.  The applicant stated that for the last 25 years he has worked very hard as a carpenter to try and better his life.  He has recently joined the Volunteer Fire Department and is getting more involved in his community.  The applicant states that he is a divorced single parent with two sons and one daughter.  He taught them to respect themselves and others, and that through hard work they could have a good life and become good citizens.  The applicant states that he never had much money, but was able to a purchase a home 7 years ago which was a great accomplishment.  As for now, he is unemployed and going through some hard times, but not worried; he is keeping his head up and waiting for the best to come.

8.  The applicant provided four letters of support from family and associates.  The authors all stated, in effect, that they have known the applicant for many years.  They stated that the applicant is a caring and responsible father.  He will go out of his way to help others in need in his community and that he loves his country and way of life.
9.  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.  The request must include the individual's admission of guilt.  An under other than honorable conditions discharge is normally considered appropriate.

10.  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.

11.  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.  Counsel contends that the applicant's discharge was inequitable as it was based on one isolated incident with no other adverse action.  It is acknowledged that the applicant had no other record of misconduct.  However, the evidence of record shows that he was discharged under the provisions of Army Regulation 635-200, chapter 10, with a characterization of under other than honorable conditions by reason of administrative discharge for conduct triable by a court-martial.  Counsel has failed to show through the evidence submitted or the evidence of record that the applicant's discharge was inequitable.  Therefore, there is no basis for this argument.

2.  The applicant's good post-service conduct and achievements since his discharge are acknowledged.  However, good post-service conduct and achievements alone are not a basis for upgrading a discharge and, upon review, the applicant's good post-service achievements are not sufficient to mitigate his indiscipline in the Army.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulations and without procedural errors that would jeopardize his rights.  Therefore, the characterization of the applicant’s discharge was both proper and equitable.

4.  The applicant's records show that he had one instance of a lengthy AWOL.  He had completed 1 year, 5 months, and 1 day of service on his 3-year term of service before his separation with a total of 65 days of lost time due to being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or a general 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 to amend the decision of the ABCMR set forth in Docket Number AR20080009153 dated 21 August 2008.



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      _________________________
                 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)                                         AR20090000816



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ABCMR Record of Proceedings (cont)                                         AR20090000816



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