IN THE CASE OF:	  

		BOARD DATE:	  9 July 2009

		DOCKET NUMBER:  AR20090001435 


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

2.  The applicant states, in effect, that he requests upgrade of his discharge in order to qualify for government benefits, including health care.

3.  The applicant provides, in support of his application, a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States), dated 9 December 2008, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an effective date of
4 December 1981.

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 enlisted in the U.S. Army Reserve (USAR) for a period of
6 years on 18 May 1979, he was discharged from the USAR on 9 July 1979, and enlisted in the Regular Army on 10 July 1979 for a period of 3 years.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  The applicant’s military personnel records contain a DA Form 2-1 (Personnel Qualification Record).  Item 21 (Time Lost) shows he was absent without leave (AWOL) for 8 days from 4 December through 11 December 1979, AWOL for
29 days from 31 March through 28 April 1980, AWOL for 4 days from 3 July through 6 July 1980, AWOL for 39 days from 2 September through 10 October 1980, and AWOL for 200 days from 24 November 1980 through 11 June 1981.
   
4.  A DD Form 458 (Charge Sheet), dated 18 June 1981, shows the Commander, U.S. Army Personnel Control Facility, Fort Ord, California, preferred charges against the applicant for AWOL from 2 September to 11 October 1980 and from 4 December 1980 to 12 June 1981.

5.  On 18 June 1981, the applicant requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant’s request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge; however, the document indicates that statements in his own behalf were not submitted with his request.
The immediate and intermediate commanders recommended approval of the applicant’s request for discharge.

6.  On 6 October 1981, the separation authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished a discharge certificate under other than honorable conditions.

7.  The applicant’s DD Form 214 shows he was discharged on 4 December 1981 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and his service characterized as under other than honorable conditions.  At the time he had completed 1 year, 7 months, and 15 days of net active service and 1 month and 22 days of total prior inactive service.

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

9.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86, for periods of AWOL in excess of 30 days.

10.  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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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.  The applicant contends his under other than honorable conditions discharge should be upgraded to an honorable discharge so that he may qualify for government benefits, including health care.

2.  The applicant’s request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary, administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  In addition, the character of the discharge is appropriate for the applicant's offense and commensurate with his overall record.  Therefore, considering all the facts of the case, the type of discharge and character of service directed were appropriate.

3.  The applicant’s record of service, which includes well over 200 days of time lost, shows that his overall quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Thus, he is not entitled to a general discharge under honorable conditions.  Moreover, his record of service clearly does not warrant an honorable discharge.

4.  As a matter of information, the ABCMR does not upgrade a former Soldier's discharge solely to enhance his or her eligibility for veteran’s benefits.

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.  Therefore, in view of all of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090001435



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001435



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1