IN THE CASE OF:	

		BOARD DATE:	25 June 2009  

		DOCKET NUMBER:  AR20090005260 


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

2.  The applicant states he now has a family, with a 5 year old son and a 77 year old mother.  He states his health is failing and he needs the support.

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 on 21 May 1985.  He completed basic combat training and advanced individual training and he was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 7 November 1985, the applicant was assigned to Headquarters and Headquarters Company, 2nd Battalion, 504th Infantry at Fort Bragg, NC.

4.  On 25 March 1987, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent from his appointed place of duty.

5.  On 6 April 1987, the applicant left his unit in an absent without leave (AWOL) status and he was dropped from the rolls on 6 May 1987.  On 18 November 1987, the applicant was apprehended by civilian authorities and returned to military control.

6.  On 20 November 1987, court-martial charges were preferred against the applicant for being AWOL during the period from 6 April to 18 November 1987.

7.  On 20 November 1987, the applicant voluntarily requested discharge for the good of the service.  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 at least one of the offenses with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this 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 (VA), and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

8.  A captain 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 discharge under other than honorable conditions, if his request was approved; and of the procedures and rights available to him.

9.  On 2 December 1987, the applicant's commander recommended approval of the applicant's request for discharge with an under other than honorable conditions disharge.  The commander stated the applicant had become disillusioned with the military and that his retention would not be in the best interest of the Army.

10.  On 14 December 1987, the appropriate authority approved the applicant's request for discharge for the good of the service, directed that he be reduced to private/pay grade E-1, and that he be furnished an under other than honorable conditions discharge.  

11.  On 30 December 1987, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations), for the good of the service.  He had completed 1 year, 11 months, and 28 days of active service that was characterized as under other than honorable conditions.  He also had 225 days of time lost.

12.  On 1 October 1990, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

13.  Army Regulation 635-200 sets forth the basic authority for the administrative 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.  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.  

14.  Army Regulation 635-200 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.  

15.  Army Regulation 635-200 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 voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged that he could receive an under other than honorable conditions discharge and that he may be ineligible for many or all Army benefits to include benefits administered by the VA.

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

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

4.  The applicant's statement that he has now has a family and his health is failing was considered.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time or to make an individual eligible for benefits from another agency.  Disabilities which are diagnosed or deteriorate after a Soldier is separated are treated by the VA.  Any claims or issues concerning treatment or compensation for service related disabilities should be addressed to that agency.  

5.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to an honorable discharge or to a general discharge under honorable conditions.

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.



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)                                         AR20090005260



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ABCMR Record of Proceedings (cont)                                         AR20090005260



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