BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090005442 


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 discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that after serving 6 years in the U.S. Army Reserve (USAR), he requested a non-combat military occupational specialty (MOS) before enlisting in the Regular Army (RA) and entering active duty.  His recruiter informed him that he did not qualify for any other MOS than 11C (Indirect Fire Infantryman).  Therefore, he accepted MOS 11C in hopes of making a lateral shift into another MOS.

3.  The applicant states when he spoke to an advisor after enlisting in the RA, he was advised that his entrance examination scores were high enough to qualify him for a non-combat MOS and that his recruiter had misinformed him.  The applicant states that since the information the recruiter gave him was false, it constitutes a breach of contract.  The applicant concludes he processed out of the military at his own accord and was informed that after six months his discharge would be automatically upgraded.

4.  The applicant provides no additional documentation in support of this case.

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 had prior military service in the USAR.  

3.  A DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States), dated 22 March 1989, shows he enlisted in USAR Delayed Entry Program (DEP) 22 March 1989.  On 22 May 1989 he was discharged from the DEP and on 23 May 1989 he enlisted in the RA for a 4-year term of service. 
  
4.  A DD Form 1966/5 (Record of Military Processing, Armed Forces of the United States), dated 23 May 1989, shows that the applicant’s enlistment was for 4 years to qualify him for the U.S. Army Training Enlistment Program, Option 9-4, for U.S. Army Airborne training.

5.  A DA Form 3286-60/1 (Statement for Enlistment), dated 23 May 1989, shows the applicant selected the enlistment MOS choice option with U.S. Army Airborne training.  The document further shows that his training would be in Army Career Management Field (CMF) 11 (Infantry).

6.  The applicant successfully completed basic combat and advanced individual training.  He was awarded MOS 11C.  He also attended and completed basic airborne training.

7.  On 5 October 1989, the applicant was assigned to Headquarters and Headquarters Company, 325th (AIR [Airborne Infantry Regiment]), 82nd Airborne Division.

8.  A DD Form 458 (Charge Sheet), dated 10 July 1990, shows that charges were preferred against the applicant for being AWOL for the period 5 October 1989 to 2 July 1990.

9.  On 11 July 1990, the applicant submitted a request for discharge for the good of the service – in lieu of court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).  The 

applicant indicated in his request that he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate, that he will be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant elected not to make a statement in his own behalf.

10.  On 11 July 1990, the applicant was placed on voluntary excess leave pending the final disposition of his discharge request.

11.  On 12 September 1990, the applicant’s unit commander recommended approval of his discharge with issuance of an UOTHC Discharge Certificate.

12.  On 14 September 1990, the intermediate commander recommended approval of the applicant’s UOTHC discharge.

13.  On 17 September 1990, the appropriate authority approved the recommendation for discharge under the provisions of chapter 10 of Army Regulation 635-200 and directed that the applicant be furnished an UOTHC discharge.  He also directed that the applicant be reduced to the lowest enlisted grade.

14.  On 28 September 1990, the applicant was discharged from active duty and he was issued an UOTHC Discharge Certificate based on the provisions of chapter 10 of Army Regulation 635-200 by reason of for the good of the service – in lieu of court-martial.  He had completed 7 months and 19 days of creditable active service with 270 days of lost time due to being AWOL.

15.  There is no evidence showing 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.

16.  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.

17.  Army Regulation 635-200 governs the policies and procedures for the separation of enlisted personnel.  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 that he was misinformed by his recruiter; however, evidence of record shows that he enlisted to be an infantryman.  There is no evidence in his records and he has not provided any evidence that shows his recruiter misinformed him.  In the absence of evidence of record or of any evidence submitted by the applicant, there is an insufficient basis to support this argument.  Therefore, there is no basis for granting the applicant's requested relief.

2.  Although the applicant contends that he was told after six months his discharge would be upgraded, the U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

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)                                         AR20090005442



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ABCMR Record of Proceedings (cont)                                         AR20090005442



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