IN THE CASE OF:	  

		BOARD DATE:	       1 JULY 2009

		DOCKET NUMBER:  AR20090001594 


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

2.  The applicant states he went home from jump school in an attempt to salvage his marriage but was unsuccessful and regrets taking that action.  He states it was wrong but he doesn't feel it was a serious offense.  He further states he had brain surgery in August 2007 and wants to get his life back on track.  He also states he has remarried and has a loving family. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 records show he enlisted in the U.S. Army Reserve (USAR) on 7 March 1985.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71G (patient administration specialist).  He subsequently enlisted in the Regular Army (RA) on 9 July 1987 for a period of 4 years.  The highest rank he attained while serving on active duty this period was private/pay grade E-1.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  On 11 January 1991, charges were preferred against the applicant for being absent without leave (AWOL) during the period 31 August 1987 to 7 January 1991.

4.  On 11 January 1991, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He acknowledged that he was making the request of his own free will.  He further acknowledged he understood that by requesting a 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.  He acknowledged that he had consulted with counsel who fully advised him of the nature of his rights under the UCMJ.  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate.  He acknowledged 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 Department of Veterans Affairs, and he could be deprived of his rights and benefits as a veteran under both Federal and State law.

5.  On 4 February 1991, the applicant's commander recommended approval of the applicant's request for discharge for the good of the service under the provisions of Chapter 10, Army Regulation 635-200.  On 20 March 1991, his intermediate commander also recommended approval.

6.  On 25 March 1991, the separation authority approved the applicant's request for discharge and directed he be discharged under other than honorable conditions.

7.  On 25 April 1991, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  The DD Form 214 issued to the applicant 
confirms he completed a total of 8 months and 25 days of total creditable active military service with 3 years, 4 months, and 6 days of lost time due to AWOL.
8.  There is no indication the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

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

10.  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's records show he was charged with the commission of a serious offense.  He was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant must admit guilt and voluntarily request discharge in lieu of court-martial.

2.  The applicant states that he does not feel his absence was a serious offense; however, the applicant's records show that he had 3 years, 4 months, and 6 days of lost time due to AWOL.  Based on the applicant's record of indiscipline, his 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 a general, under honorable conditions discharge.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  It is commendable that the applicant is attempting to get his life back on track after brain surgery.  However, the Board does not upgrade a properly issued discharge to establish entitlements to benefits.

5.  Therefore, 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)                                         AR20090001594



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ABCMR Record of Proceedings (cont)                                         AR20090001594



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