IN THE CASE OF:	  

		BOARD DATE:	       23 April 2009

		DOCKET NUMBER:  AR20090001943 


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 that he would like to have his discharge reevaluated for an upgrade.  The applicant continues that he served his country honorably during his first enlistment and that time should be looked at instead of the one bad episode he had while serving on active duty.

3.  The applicant provides no additional documentary evidence in support of this case.

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 record shows he enlisted in the Army Delayed Entry Program on 7 February 1986 and entered active duty on 2 July 1986 for a period of 4 years.  He was trained in, awarded, and served in military occupational specialty 94B1O (Food Service Specialist).  Records further show the applicant served continuously until his discharge on 5 August 1991.  The highest rank he attained while serving on active duty was specialist/pay grade E-4.

3.  The applicant's records contain a request for duty status change, dated 7 November 1990, which shows the applicant's duty status changed from present for duty to absent without leave (AWOL).  On 7 December 1990, the applicant's duty status changed from AWOL to dropped from rolls.

4.  A DA Form 4187 (Personnel Action), dated 29 March 1991, shows the applicant surrendered to military authorities at Fort Bragg, North Carolina, on 26 March 1991.

5.  A DD Form 458 (Charge Sheet), dated 25 April 1991, shows the applicant was charged with two specifications of being AWOL during the periods 23 October 1990 through 5 November 1990 and 6 November 1990 through 26 March 1991.

6.  On 25 April 1991, the applicant submitted a request for discharge for the good of the service under the provisions Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), chapter 10.  In his request for discharge the applicant indicated that he had not been coerced into requesting discharge and had been advised of the implications that were attached to the request.

7.  The applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  He further acknowledged that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected not to submit a statement on his own behalf.

8.  On 2 May 1991, the separation authority approved the applicant's request for discharge and directed that he receive a discharge under other than honorable conditions.  On 5 August 1991, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued confirms he completed a total of 4 years, 8 months, and 2 days of creditable active military and that he accrued over 150 days of time lost due to AWOL.

9.  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

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 contends that his under other than honorable conditions discharge should be upgraded.

2.  Evidence of record shows the applicant's request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  Evidence of record shows the applicant was charged with being AWOL during the period 23 October 1990 through 5 November 1990 and 6 November 1990 through 26 March 1991 and had 153 days of time lost due to being AWOL.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct and lost time also renders his service unsatisfactory. Therefore, he is not entitled to an honorable or a general discharge.

5.  Accordingly, the type of discharge directed was appropriate considering all the facts of the case.

6.  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.


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)                                         AR20090001943



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ABCMR Record of Proceedings (cont)                                         AR20090001943



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