IN THE CASE OF:	

	    BOARD DATE:	           11 AUGUST 2009

	    DOCKET NUMBER:  AR20090005946 


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 under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that he believes that the under other than honorable discharge was unjust since he was not allowed to give his reason for being absent without leave (AWOL).  He further states that if he had been given the chance to explain he could have shown that he should have been released from his obligation in the Army due to a family hardship.

3.  The applicant provides four copies of character reference statements by friends, a self-authored letter dated 19 June 1989, a typed statement addressed to members of the "Board of Reviews" dated 23 March 2009, and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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.  On 14 November 1979, the applicant enlisted in the Regular Army for a period of 4 years with 2 months and 3 days of prior inactive service.  The applicant completed the required training and was awarded military occupational specialty 62E (Heavy Construction Equipment Operator).

3.  On 26 March 1981, court martial charges were preferred against the applicant for being absent without leave (AWOL) from 31 March 1980 through 24 July 1980 and from 25 July 1980 through 14 March 1981.  

4.  On 30 March 1981, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the effects of a discharge under other than honorable conditions, and of the rights available to him.  The applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged that the charges preferred against him under the Uniform Code of Military Justice authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he did not desire further rehabilitation or to perform further military service.  He acknowledged that he was making the request of his own free will and had not been subjected to any coercion.  By submitting this request he acknowledged that he was guilty of one or more of the charges that were preferred against him.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He also stated his understanding that if his discharge request was approved he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He further indicated that he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.  The applicant did not submit a statement in his own behalf.  He requested a chapter 10 discharge for the good of the service in lieu of trial by court martial.  He did not request a separation physical or a delay in the processing of all court-martial charges.

5. On 8 April 1981, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  

6.  On 27 May 1981, the applicant was discharged.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial with a discharge under other than honorable conditions.  He completed 7 months and 1 day of creditable active military service.

7.  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, 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 is normally considered appropriate.

8.  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.

9.  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.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1. There is no evidence and the applicant has not provided any evidence that shows that the discharge he received was inequitable or unjust.  

2.  The evidence of record confirms that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  After consulting with defense counsel, the applicant voluntarily requested discharge from the Army for the good of the service in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian life by reason of a discharge under other than honorable conditions.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of short and undistinguished service.

4.  Therefore, in view of the foregoing, there is no basis for granting the applicant’s request.

5.  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 this 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.



      _______ _   _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)                                         AR20090005946



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS



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