IN THE CASE OF:	  

		BOARD DATE:	       25 AUGUST 2009

		DOCKET NUMBER:  AR20090006059 


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. 

2.  The applicant states he did not understand the results of the discharge.  He states he was only 19 years old at the time and had a young wife and son.  He states that he was in the combat arms and he was “down range” too long.  He states his wife was going to leave him and take his son with her, so he went with his heart.

3.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army (RA) Soldier on 17 April 1979.  He was approximately 6 months shy of turning 20 when he enlisted.  His entrance papers do not indicate he was married at the time of his enlistment.  Although he was not a high school graduate, his aptitude scores all exceeded 100.

3.  The applicant successfully completed training and in August 1979 he was assigned to an armor unit at Fort Carson, Colorado as a “loader” in military occupational specialty (MOS) 19E (armor crewman).  By October 1979 he had been advanced to pay grade E-2.

4.  The applicant’s records indicate he was absent without leave (AWOL) for two days in November 1979 but there is no indication he was punished for this AWOL period.

5.  On 21 April 1980 the applicant again departed AWOL.  He was dropped from the rolls (DFR) of the Army on 20 May 1980.  The applicant surrendered to military authorities in Phoenix, Arizona on 7 July 1980.

6.  His records show he executed a record of emergency data at the time he returned to military control which showed he had a spouse residing in Phoenix, Arizona with his mother, but it did not reflect any children.

7.  A DD Form 458 (Charge Sheet), dated 9 July 1980, shows the applicant was charged with being AWOL from 21 April to 6 July 1980.  After consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate, and 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 Veterans Administration (VA).  He elected not to submit a statement in his own behalf and he was placed in an excess leave status, effective 11 July 1980.  

8.  On 22 July 1980 the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 



9.  The applicant was accordingly discharged on 18 August 1980, under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He was credited with completing 1 year, 1 month, and 13 days of total active service.

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

11.  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.

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

13.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would have jeopardized his rights.

2.  The applicant’s argument that he was young and merely followed his heart because of his family situation is not sufficiently mitigating to warrant the relief requested.  The applicant’s successful completion of training and advancement to pay grade E-2 is evidence that he was capable of honorable service in spite of his age.  

3.  The applicant provided no proof and the record does not substantiate that his youth impacted his ability to serve honorably.  Even if true, there is no evidence the applicant attempted to resolve his problems through his chain of command, chaplain, medical facility, or other valid support mechanisms.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090006059



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ABCMR Record of Proceedings (cont)                                         AR20090006059



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