IN THE CASE OF:	  

		BOARD DATE:	      13 AUGUST 2009

		DOCKET NUMBER:  AR20090004466 


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 his under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he completed basic combat and advanced individual training.  He states when he came home on leave he had some family problems and he didn't know how to handle them.  He further states he was a good Soldier as well as a sharp Soldier, but he made a mistake.

3.  The applicant provides no additional evidence or official 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.  The applicant's military personnel records show he enlisted in the Regular Army (RA) on 15 July 1987 for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 71M (Chaplain Assistant).

3.  On 21 January 1988, the applicant was assigned to Headquarters and Headquarters Company, 5th Battalion, 8th Infantry in Germany.

4.  On 23 January 1989, the applicant failed to return from ordinary leave and was declared absent without leave (AWOL).  He was dropped from the rolls (DFR) of the Army on 21 February 1989.

5.  On 9 August 1989, the applicant was apprehended by civilian authorities at Fort Valley, GA, and returned to military control on the same date.

6.  On 28 August 1989, court-martial charges were preferred against the applicant for being AWOL from on or about 23 January 1989 to on or about 
9 August 1989.

7.  On 29 August 1989, the applicant voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) 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 understood the elements of the offenses he was charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making his request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that 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 may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

8.  A major of the Judge Advocate General's Corps countersigned the applicant's statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Code of Military Justice; of the possible effects of a discharge under other than honorable conditions, if his request is approved; and of the procedures and rights available to him.

9.  The applicant's commander recommended approval of his request for discharge and that he receive a discharge under other than honorable conditions.

10.  The applicant's intermediate commander recommended approval of the request for discharge and that he receive an under other than honorable conditions discharge.

11.  On 11 September 1989, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that his character of service be under other than honorable conditions.

12.  On 20 November 1989, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of court-martial.  He had completed 1 year, 9 months, and 20 days of active service that was characterized as under other than honorable conditions.  He had 198 days of time lost.

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

14.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  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 he had family problems that he didn't know how to handle.  However, he did not provide evidence as to what his problems were or to what extent they existed.  Therefore, his contention is insufficiently mitigating in the determination of his case.

2.  After being AWOL for 198 days, the applicant was apprehended by civilian authorities and returned to military control.  There is no indication the applicant intended to return to military control on his own.

3.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.  

4.  The applicant’s voluntary request for separation under the provisions of Chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of court-martial, was administratively correct and in conformance with applicable regulations.   

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

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 that requirement.

7.  Based on the foregoing, there is insufficient 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.



      _________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)                                         AR20090004466



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ABCMR Record of Proceedings (cont)                                         AR20090004466



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