IN THE CASE OF:	  

		BOARD DATE:	        23 JUNE 2009

		DOCKET NUMBER:  AR20090001233 


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 that his under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he has stage four throat cancer and needs medical assistance from the Department of Veterans Affairs (VA).  He also states that his average conduct and efficiency ratings, behavior, and proficiency marks were good and he received awards and decorations.  His record of promotions showed he was generally a good service member.  His record of being absent without leave (AWOL) indicated only minor or isolated offenses.  His ability to serve was impaired because of marital, family, and child care problems.

3.  In support of his application, the applicant provides copies of a diagnostic letter from a radiation oncologist and a treatment summary from the North Florida Cancer Center.

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 he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 27 August 1975.  He was subsequently discharged from the DEP on 7 September 1975 and he enlisted in the Regular Army (RA), in pay grade E-1, for 4 years on 8 September 1975.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 55G (Nuclear Weapons Maintenance Specialist).  He was promoted to pay grade E-5 on 6 June 1980.  

3.  The applicant was reported AWOL on 5 October 1981 and dropped from the rolls (DFR) of the Army on 3 November 1981.  He was returned to military control on 16 November 1981.

4.  On 2 December 1981, the applicant's company commander initiated a bar to reenlistment action against the applicant.  The company commander stated that the applicant was punished under non-judicial punishment on 21 September 1981 for fraud.  The applicant was counseled on 19 May, 18 June, 10 July, and 21 September 1981 for writing bad checks, delinquent payments, budget counseling, and continuous failure to pay just debts.  The company commander also stated that the applicant had numerous counseling statements from the period of April 1981 to December 1981 for continuous patterns of indebtedness, dishonored checks, and finally a loss of his military top secret clearance after being assigned from a nuclear weapons branch.  The company commander further stated that the applicant was not recommended for promotion.

5.  On 14 December 1981, a DD Form 458 (Charge Sheet) was prepared by the Commander, Headquarters Company, Headquarters Command, Hunter Army Airfield, Georgia.  The applicant was charged with one specification of being AWOL from 5 October through 16 November 1981.  

6.  On 15 December 1981, the applicant's company commander recommended the applicant be tried by special court-martial.  

7.  On 16 December 1981, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under 

Conditions other than honorable and furnished an under other than honorable discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected to submit a statement in his own behalf.

8.  In a statement, dated 16 December 1981, the applicant stated that he was requesting a chapter 10 discharge because if he were court-martialed, he would be financially ruined.  The reduction in grade and fine per month would create more problems for himself and the US Government.

9.  On 16 December 1981, the applicant's company commander recommended approval of the applicant's request and recommended the issuance of a discharge under other than honorable conditions.  The company commander stated that the potential for rehabilitation of the applicant appeared to be very poor.

10.  On 18 December 1981, the Headquarters Command Commander recommended approval of the applicant's request and recommended the issuance of a discharge under other than honorable conditions.  

11.  On 31 December 1981, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a discharge under other than honorable conditions be issued to him and that the applicant be reduced to pay grade E-1.

12.  The applicant was discharged on 7 January 1982, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with his service characterized as under other than honorable conditions.  He was credited with 3 years, 6 months, and 28 days net active service this period and lost time from 5 October through
16 November 1981 due to AWOL.

13.  On 17 October 1983, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his discharge.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An under other than honorable conditions discharge was normally considered appropriate.  
15.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contention that his discharge should be changed has been noted.  However, the applicant was charged with one specification of AWOL from 5 October through 16 November 1981.  Upon his return to military control he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also stated that he would be financially ruined if he were court-martialed.  

3.  Contrary to the applicant's contentions, he has provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general discharge.  

4.  The applicant desires to have his under other than honorable conditions discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA and other Federal and State social services organizations; however, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  


6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090001233



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ABCMR Record of Proceedings (cont)                                         AR20090001233



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