IN THE CASE OF:	  

		BOARD DATE:	        23 JUNE 2009

		DOCKET NUMBER:  AR20090004129 


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. 
  
2.  The applicant states, in effect, that he was absent without leave (AWOL) because of love.  At 18 years of age, he was assigned for duty in the Federal Republic of Germany where he met and fell in love with a German woman.  Because his commander denied his request to get married, he went AWOL.  After about 2 years of running, he surrendered to the military.  He was subsequently discharged at Fort Dix, New Jersey.  Afterwards, he returned to the Federal Republic of Germany, married that same lady, and remained with her until she died in 1991 of a chronic illness.  He remained in the Federal Republic of Germany for a couple more years and then returned to the United States.  Now, he begs for a pardon. [The available self-authored statement appears to be incomplete.]

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 2 April 1985, the applicant enlisted in the Regular Army (RA).  At the time he was 18 years, 3 months, and 24 days of age.  He completed his initial training and was awarded military occupational specialty (MOS) 63E (Abrams Tank Systems Mechanic).

3.  On 13 September 1985, the applicant departed Fort Knox, Kentucky, for assignment in the Federal Republic of Germany.

4.  On 1 October 1985, the applicant was assigned for duty with the 3rd Battalion, 33rd Armored Regiment, in the Federal Republic of Germany.

5.  Records indicate that on 24 June 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for AWOL.  Evidence showing the length of his AWOL or punishment received is unavailable.

6.  On or about 24 July 1986, the applicant went AWOL.  He returned to military control on or about 16 October 1987.

7.  On 27 October 1987, charges were preferred under the UCMJ for violation of Article 86, AWOL, during the period from on or about 24 July 1986 to on or about 16 October 1987.

8.  On 27 October 1987, 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, under the provisions of Army Regulation 635-200, chapter 10. 

9.  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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 18 December 1987, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Under Other Than Honorable Discharge Certificate).  On 20 January 1988, the applicant was discharged accordingly.  He had completed a total of 1 year, 6 months, and 25 days of creditable active military service and he had 479 days of time lost due to AWOL.

11.  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.

12.  Army Regulation 635-200 (Personnel Separations – Enlisted 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.

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, 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.

15.  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 discharge should be upgraded because he was only 18 years of age at the time and he was in love.

2.  The applicant's contention that he was young and in love at the time is not sufficiently mitigating to warrant relief.  The applicant was almost 20 years of age at the time of his first negative incident.  His satisfactory completion of training and 8 months of satisfactory service in the Federal Republic of Germany prior to his AWOL shows that he was not too young to serve honorably.

3.  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.  

4.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He acknowledged that he had been advised of and understood his rights under the UCMJ, that he could receive an UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an UOTHC discharge.  His service was and is appropriately characterized by the offense that led to the discharge.

5.  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 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.



      ______XXX_______________
               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)                                         AR20090004129



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ABCMR Record of Proceedings (cont)                                         AR20090004129



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