IN THE CASE OF:	  

		BOARD DATE:	  18 June 2008

		DOCKET NUMBER:  AR20090004265 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he served honorably for 15 years in the Army including an 11-month tour in Vietnam, that he was discharged from Fort Sam Houston in September 1983, that he was sent home on 45 days of terminal leave, and that he was told his discharge would be mailed to him.  He contends that in 1986 he was pulled over for having a headlight out on his car and he was arrested on an outstanding warrant as a deserter.  He goes on to state that he was taken to Fort Dix, New Jersey, that he was interviewed by a clerk, and that he was given a military haircut, issued a uniform, and told to report to the company commander.  He states the company commander told him the paperwork had just come back and he was a civilian.  He was given a chit explaining that the warrant was no longer in force and he was told the paperwork would be squared away in three years.  He went back to Massachusetts.  In 2003, he was told his discharge still showed other than honorable.  He thought his discharge had been corrected at Fort Dix in 1986.  He believes he is entitled to an honorable discharge based on his service.      

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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.  The applicant enlisted in the Regular Army on 27 June 1968 for a period of 
3 years.  He served in Vietnam from 3 December 1969 to 4 November 1970 and was honorably discharged on 24 June 1971 for immediate reenlistment.  He reenlisted on 25 June 1971 and remained on active duty through continuous reenlistments.  He attained the rank of specialist six effective 12 November 1977. He reenlisted for the last time on 7 November 1980 for a period of 3 years.        

3.  On 28 July 1983, nonjudicial punishment was imposed against the applicant for violation of Article 86 (no other details available).  His punishment consisted of an oral reprimand and extra duty.

4.  On 30 September 1983, a recommendation to bar the applicant from reenlistment was initiated.  The recommendation was based on the applicant's nonjudicial punishment, indebtedness, consistently being on sick call, counseling statements for substandard duty performance and abuse of sick call procedures, a letter of poor performance, a substandard Enlisted Evaluation Report, and he was pending an Article 15 for dereliction of duty.  The applicant acknowledged receipt of the recommendation on 30 September 1983.  

5.  The applicant went absent without leave (AWOL) on 14 October 1983.  

6.  On 31 October 1983, a bar to reenlistment was imposed against the applicant.

7.  On 5 November 1986, the applicant was apprehended by civilian authorities and returned to military control.  On 7 November 1986, the applicant was interviewed and he indicated that he did not know he was being carried as AWOL and that he went on terminal leave three weeks prior to his expiration term of service.  On 7 November 1986, charges were preferred against the applicant for the AWOL period.    
8.  On 7 November 1986, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration; that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

9.  On 9 December 1986, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

10.  Accordingly, the applicant was discharged under other than honorable conditions on 29 December 1986 under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 13 years, 11 months, and 20 days of creditable active service with 753 days of lost time due to AWOL.

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the 
individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.
14.  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 contentions that he was discharged from Fort Sam Houston in September 1983, that he was sent home on 45 days of terminal leave, and that he was told his discharge would be mailed to him were noted.  However, there is no evidence of record to support these contentions.  Evidence of record shows he went AWOL on 14 October 1983 and returned to military control on 
5 November 1986.  On 7 November 1986, he consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge.

2.  The applicant's contention that he believes he is entitled to an honorable discharge based on his service was noted.  However, the applicant’s record of service during his last enlistment included a bar to reenlistment, one nonjudicial punishment, and 753 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.  

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.






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)                                         AR20090004265





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ABCMR Record of Proceedings (cont)                                         AR20090004265



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