IN THE CASE OF:	  

		BOARD DATE: 	         30 June 2009

		DOCKET NUMBER:  AR20090004060 


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 an honorable discharge.

2.  The applicant states that he was not mature enough to handle the situation at that time of his life but he has now become a productive citizen of this country.  He also states that he was told upon his release from active duty that if he stayed out of trouble for 2 years that his discharge would be upgraded.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), and DA Form 2-1 (Personnel Qualification Record) 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 Regular Army on 3 June 1982.  He was awarded the military occupational specialty of water treatment specialist and promoted to pay grade E-4.

3.  The available records do not show any significant acts of achievement or valor during his military service.

4.  On 5 March 1986, the applicant was informed of charges preferred against him for being absent without leave (AWOL) during the period 3 January 1986 through 2 March 1986.

5.  On 5 March 1986, 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 that 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

6.  On 24 March 1986, the applicant's commander recommended approval of the applicant's request for discharge for the good of the service following an interview with him wherein the applicant stated that he desired elimination from the Service under the provisions of chapter 10, Army Regulation 635-200, under other than honorable conditions.

7.  On 4 April 1986, the separation authority approved the applicant's request for discharge and directed that he be given a discharge under other than honorable conditions and be reduced to the lowest enlisted grade unless already serving in that grade.

8.  On 17 April 1986, 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 3 years, 8 months, and 15 days of creditable active military service with 59 days of lost time due to being AWOL.

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

10.  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.

11.  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.

12.  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.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant admitted guilt and requested discharge in lieu of court-martial.

2.  The applicant's records show that he had 59 days of lost time due to being 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 either a general or an honorable 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.  The Army does not have and has never had any policy to automatically upgrade a discharge based on the passage of time.

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.



      _______ _   _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)                                         AR20090004060



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ABCMR Record of Proceedings (cont)                                         AR20090004060



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