IN THE CASE OF:	

		BOARD DATE:	16 July 2009    

		DOCKET NUMBER:  AR20090004142 


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 1985 discharge under other than honorable conditions be upgraded or that he be reinstated in the Army.

2.  The applicant states in his self-authored statement that when he joined the Army at age 17 he gave his oath and word to protect the United States to the best of his ability.  He notes he completed training in various weapons and was sent to Fort Hood, Texas and then on to Fort Irwin, California.  He states that he was away from his loving family and he left to return to them.  

3.  The applicant states that he turned 42 in September and has waited to receive an honorable discharge but has not received it yet.  He states that he believes his discharge should be upgraded for his family, his friends, and for himself and notes he is also still available to serve.

4.  The applicant provides a copy of his 1985 DD Form 214 (Certificate of Release or Discharge from Active Duty) and his self-authored statement in support of his request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 11 May 1984 after receiving a waiver for an arrest for driving under the influence in 1983.  The applicant was 17 years old at the time of his enlistment and had completed 2 years of high school.

3.  The applicant successfully completed one station unit training and was awarded military occupational specialty 19D (cavalry scout) prior to being assigned to Fort Hood, Texas in September 1984.

4.  On 29 January 1985 the applicant departed AWOL (absent without leave).  He was dropped from the roles of the Army on 28 February 1985.  On 7 March 1985 he was apprehended by civilian authorities and returned to military control at Fort Sill, Oklahoma.

5.  A DD Form 458 (Charge Sheet), dated 7 March 1985, shows the applicant was charged with being AWOL from 29 January 1985 to 7 March 1985.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate, and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He elected not to submit a statement in his own behalf and he was placed in an excess leave status effective 13 March 1985.

6.  On 26 March 1985, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 

7.  The applicant was discharged on 16 April 1985, under the provisions of Army Regulation 635-200, chapter 10 with his service characterized as under other than honorable conditions.  He was also credited with completing 10 months of total active service.

8.  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.

9.  Army Regulation 635-200 sets forth the basic authority for 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.  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.  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, or is otherwise so meritorious that any other characterization would be 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 military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would have jeopardized his rights.  

2.  The applicant’s successful completion of training, while commendable, is not sufficiently mitigating to serve as a basis to upgrade his discharge but rather shows that in spite of his youth he was capable of honorable service.  His decision to depart AWOL was not in keeping with his oath to serve faithfully.

3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  There is no basis to reinstate the applicant to active duty.
4.  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)                                         AR20090004142





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ABCMR Record of Proceedings (cont)                                         AR20090004142



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