IN THE CASE OF:	  

		BOARD DATE:	       19 May 2009

		DOCKET NUMBER:  AR20090002270 


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, in effect, that his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he was young and made some bad decisions which he now regrets.  However, he served his time and wants his discharge upgraded so as to be eligible for Department of Veterans Affairs (VA) benefits.  He further states that he suffers from alcoholism, is homeless, and in need of medical care.

3.  The applicant provides no additional documentation 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.  On 30 July 1976, the applicant enlisted in the Regular Army for 3 years.  At the time he was 18 years, 1 month, and 12 days of age.  He completed his initial training and was awarded military occupational specialty 11B (Infantryman).

3.  The applicant attended the 3-week Basic Airborne Course and successfully completed it in December 1976.

4.  On 4 January 1977, the applicant was assigned for duty as a grenadier with the 3rd Battalion, 325th Infantry Regiment, located at Fort Bragg, North Carolina.

5.  On 1 September 1978, the applicant was promoted to the rank of specialist four, pay grade E-4.

6.  On 20 September 1979, the applicant, who was 21 years of age at the time, received a letter of reprimand for being absent without leave (AWOL) during 17 and 18 September 1979.  The commander informed him of the seriousness of his actions and that his performance would be closely monitored to ensure that he was deserving of his recent recommendation for promotion to sergeant, pay grade E-5.

7.  On 15 October 1979, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL during the period from on or about 9 to 11 October 1979.  The punishment included reduction to pay grade E-3, a forfeiture of $100.00 pay per month for 1 month, and 14 days of restriction and extra duty.  The applicant did not appeal the punishment.

8.  On 7 November 1980, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period from on or about 10 June 1980 to 3 November 1980.

9.  On 13 November 1980, 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 UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

10.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  On 8 December 1980, the separation authority approved the applicant’s request for discharge and directed that he be issued an Undesirable Discharge Certificate.  On 20 January 1981, the applicant was discharged accordingly.  He had completed a total of 4 years and 22 days of creditable active military service and had accrued 152 days of time lost due to AWOL.

12.  On 26 February 1997, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

13.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

14.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

15.  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.

16.  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 that he was young and made some bad decisions which he now regrets.  He served his time and wants his discharge upgraded so as to be eligible for VA benefits.

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  The type of discharge and reason therefore were appropriate considering all of the facts of the case.

3.  The applicant's implied contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 21 years of age, had satisfactorily completed training, and had served for over 3 years before any negative incidents are documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

4.  A desire to obtain entitlement to VA benefits is not justification for an upgrade of an individual's discharge.

5.  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.  Therefore, he is not entitled to an honorable discharge.

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 the aforementioned requirement.

7.  In view 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)                                         AR20090002270



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ABCMR Record of Proceedings (cont)                                         AR20090002270



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