IN THE CASE OF:	  

		BOARD DATE:	        9 JUNE 2009

		DOCKET NUMBER:  AR20090004624 


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 under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states, in effect, that he had disabilities that created a state of depression for him and this lead to his discharge.  He is currently seeking Department of Veterans Affairs (VA) compensation for his disabilities.  The VA is stating that these disabilities occurred during a dishonorable period of service.   

3.  In support of his application, the applicant provides copies of VA Form 21-4138 (Statement in Support of Claim) and a list of his disabilities and medical facilities where he received treatment.  

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 records show he enlisted in the Army Delayed Entry Program on 10 January 1980.  He enlisted in the Regular Army, in pay grade 
E-1, on 15 January 1980, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 11B, Infantryman.  He was promoted to pay grade E-4 on 15 January 1982.  

3.  The applicant was reported absent without leave (AWOL) on 2 November 1984 and returned to military control on 15 November 1984.  He was again reported AWOL on 17 November 1984 and dropped from the rolls of his organization on 17 December 1984.  He was apprehended by civilian authorities and returned to military control on 19 January 1985.

4.  On 29 January 1985, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, US Army Personnel Control Facility, Fort Knox, Kentucky.  The applicant was charged with two specifications of being AWOL from 2 November through 15 November 1984 and from 17 November 1984 through 19 January 1985.  

5.  On 31 January 1985, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Separations), Chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an other than honorable discharge; 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 VA.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 12 February 1985, the Special Processing Company Commander recommended approval of the applicant's request and recommended the issuance of discharge under other than honorable conditions.  The unit commander stated that based on the applicant's previous record, punishment could be expected to have a minimal rehabilitative effect and he believed the discharge would be in the best interest of all concerned.

7.  On 12 February 1985, the Headquarters Command Commander recommended approval of the applicant's request and recommended the issuance of a discharge under other than honorable conditions.  

8.  On 19 February 1985, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a discharge under other than honorable conditions be issued to him and that the applicant be reduced to pay grade E-1.

9.  The applicant was discharged on 19 March 1985, in pay grade E-1 under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service in lieu of trial by court-martial, with his service characterized as under other than honorable conditions.  He was credited with 4 years, 11 months, and 20 days net active service and lost time from 2 November through 14 November 1984 and 17 November 1984 through 18 January 1985 due to AWOL.

10.  On 28 March 1995, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for 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.  An under other than honorable conditions discharge was normally considered appropriate.  

12.  Army Regulation 635-200, paragraph 3-7b, also 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to general, under honorable conditions.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contention that his discharge should be changed has been noted.  However, the applicant was charged with two specifications of AWOL from 2 November to 15 November 1984 and from 17 November 1984 to 19 January 1985.  Upon his return to military control he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.

3.  Contrary to the applicant's contentions, he has provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a general discharge.  

4.  The Board acknowledges the applicant's desire to have his under other than honorable conditions discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA and other Federal and State social services organizations; however, the Board does not grant relief solely for the purpose of an applicant qualifying for benefits administered by these agencies.

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which 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 appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this 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)                                         AR20090004624



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1


ABCMR Record of Proceedings (cont)                                         AR20090004624



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1