IN THE CASE OF:	  

		BOARD DATE:	      11 AUGUST 2009

		DOCKET NUMBER:  AR20090004722


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 characterized as under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states, in effect, that he served honorably from 1977 to 1981.  After he reenlisted for a second term he began to have problems with drugs, alcohol and his family.  He believes that some of his medical problems developed while he was serving in Korea.

3.  In support of his request, the applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 May 1987.

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 record shows he enlisted in the Regular Army on  
10 November 1977.  He completed the required training and was awarded military occupational specialty (MOS) 19E (Armor Crewman).  The highest grade he attained was pay grade E-4.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) during several periods between 5 July 1978 and
23 March 1987.  The calculated AWOL time for those periods equal 1,657 days.  

4.  On 30 March 1987, the applicant consulted with counsel and voluntarily admitted to being AWOL between 12 February 1983 and 24 March 1987.  The applicant stated that his admission was for administrative purposes only so that he could be processed out of the Army.  He also acknowledged that he may be given an UOTHC discharge and that he understood the legal and social ramifications of that type of discharge and what it will mean for him in the future. 

5.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Military Personnel Records Jacket (MPRJ).  However, the MPRJ does contain a DD Form 214 that shows he was discharged, on 4 May 1987, under the provisions of Army Regulation 635-200, chapter 10, with an UOTHC discharge.  At the time of his discharge, the applicant had 4 years and   7 months of active service with 1,657 days of lost time.

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

7.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service - in lieu of trial by court-martial.  An UOTHC discharge was normally considered appropriate.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

8.  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.

9.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant had several periods of AWOL while on active duty.  He accumulated a total of 1,657 days of time lost due to being AWOL.  

2.  In the absence of evidence to the contrary, it is presumed that the applicant's voluntary request for separation, under the provisions of Army Regulation      635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  

3.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

4.  The applicant was appropriately furnished an UOTHC discharge which shows he completed a total of 4 years and 11 months and 9 days of creditable service and he had 1,657 days of lost time due to being AWOL.

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)                                         AR20080005986



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004722



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1