IN THE CASE OF:	  

		BOARD DATE:	         19 May 2009 

		DOCKET NUMBER:  AR20090001785 


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 a general discharge.

2.  The applicant states, in effect, he was wrongly accused of an incident while at Fort Campbell, Kentucky and that this led to his absent without leave (AWOL) charge. 

3.  The applicant provides no additional documentary evidence 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 enlisted in the Regular Army on 25 November 1986 for 4 years.  He served in military occupational specialty 63B (Light Wheel Vehicle Mechanic) until his separation on 29 October 1990.

3.  A DA Form 4187 (Personnel Action) shows the applicant departed AWOL on 30 May 1990.  A second DA Form 4187 shows he was apprehended by civilian authorities and returned to military control on 7 September 1990.

4.  On 11 September 1990, charges were preferred against the applicant for the above period of AWOL.

5.  On 11 September 1990, after consulting with counsel, the applicant submitted a request for 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 could be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he might encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to submit a statement in his own behalf.

6.  On 24 September 1990, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of court-martial under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be discharged under other than honorable conditions and that he be reduced to the rank of private/E-1.  

7.  On 29 October 1990, the applicant was discharged with a characterization of service of under other than honorable conditions.  The applicant completed a total of 3 years, 7 months, and 28 days of creditable active service with approximately 100 days of lost time due to being AWOL.

8.  There is no evidence the applicant applied to the Army Discharge Review Board 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 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, 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.  The applicant’s request for an upgrade of his under other than honorable conditions discharge has been determined to be without merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The applicant voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 to avoid trial by court-martial.  The applicant’s request for discharge required an admission of guilt.

3.  The available evidence shows the applicant had approximately 100 days of lost time due to being AWOL.  The applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general discharge under honorable conditions or an honorable discharge.

4.  Based on the evidence that is available it is concluded that all requirements of law and regulation were met and the applicant’s rights were fully protected throughout the separation process.  Therefore, it is concluded that the applicant’s characterization of service and the reason for discharge are both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.


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)                                         AR20090001785



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ABCMR Record of Proceedings (cont)                                         AR20090001785



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