IN THE CASE OF:	  

		BOARD DATE:	       12 May 2009

		DOCKET NUMBER:  AR20090001741 


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 discharge under other than honorable conditions be upgraded to an honorable or a general discharge.  He also requests that his rank be restored to E-4. 

2.  The applicant states that he would like his discharge upgraded and his rank restored so he can join the Army National Guard.  He contends that he went absent without leave (AWOL) because his grandmother was very ill and not expected to live but she got better and he returned to his unit.  He goes on to state that he was young and dumb and he apologizes for what he did.  He claims that he is a certified electrician, that he is attending college and will be graduating in June 2009, and that he is a member of the 187th Airborne Ventura County Chapter (Color Guard).  He points out that he was voted Trooper of the Year and he does not have a criminal record.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), a brochure on the 128th Quartermaster Company, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his 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 was born on 11 April 1960.  He enlisted in the Regular Army on 25 July 1978 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 16P (Air Defense Artillery Short Range Missile Crewman).  

3.  On 11 September 1979, contrary to his plea, the applicant was convicted by a summary court-martial of being AWOL from 14 August 1979 to 22 August 1979.  He was sentenced to forfeit $200.00 per month for 1 month and to perform 
45 days of hard labor without confinement.  On 11 September 1979, the convening authority approved the sentence.

4.  The applicant was promoted to specialist on 1 February 1981.    

5.  The applicant went AWOL on 11 March 1981 and returned to military control on 13 May 1981.  On 16 July 1981, charges were preferred against the applicant for the above AWOL period.

6.  On 2 September 1981, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated that he went AWOL because of problems at his unit (lack of communication) and his grandmother was ill.  He contends that he had 62 days of leave and his unit would not let him go home.

7.  A DA Form 2496 (Disposition Form), dated 9 October 1981, states that the applicant had 3 prior Article 15s for failure to repair, being AWOL, making a false official statement and for losing a Government meal card through neglect.
8.  On 9 October 1981, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions and that he be reduced to the lowest enlisted grade.  

9.  Accordingly, the applicant was discharged under other than honorable conditions on 21 October 1981 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 3 years and 7 days of creditable active service with 71 days of lost time due to being AWOL.  His DD Form 214 shows his rank as E-1.

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

11.  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.

12.  Paragraph 10-1 (Reductions) of Army Regulation 600-8-19 (Enlisted Promotions and Reductions) states, in pertinent part, that when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, he/she will be reduced to the lowest enlisted grade.

13.  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.  

14.  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.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed basic combat training and advanced individual training.    

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.    

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The applicant’s record of service included 3 Article 15s, a summary court-martial conviction, and 71 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

5.  Since the separation authority directed the issuance of a discharge under other than honorable conditions, in accordance with the governing regulation the applicant was reduced to the lowest enlisted rank.  Therefore, there is no basis for granting the applicant’s request to restore his rank to E-4. 

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)                                         AR20090001741



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ABCMR Record of Proceedings (cont)                                         AR20090001741



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