IN THE CASE OF:	

		BOARD DATE:	16 July 2009    

		DOCKET NUMBER:  AR20090006395 


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 that his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states that he was nearly 19 years of age at the time and very impressionable.  He also states that he went home one weekend and the lady who was carrying his baby went into labor.  As this was his first child, he was very excited about the birth of the baby and very worried at the same time as the mother had birth complications and ultimately delivered by C-section.  He concludes that he was young at the time and was under a lot of pressure and that he did not know what to do.

3.  The applicant did not provide any additional documentary 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.  The applicant's record shows he was born on 5 June 1961 and enlisted in the Regular Army for a period of 3 years at 18 years of age on 1 August 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist).  The highest rank/grade he attained during his military service was private/E-1. 

3.  The applicant’s record also shows he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  The applicant’s record further shows he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the periods on or about 3 January through 7 January 1980 and on or about 16 January through 22 January 1980.  His punishment consisted of a forfeiture of $200.00 pay per month for 2 months (the first $150.00 of the first month was suspended until 24 March 1980), and 14 days of extra duty.  

5.  On 10 March 1980, the applicant departed his unit again in an AWOL status and he was subsequently dropped from Army rolls on 10 April 1980.  He surrendered to military authorities at Lexington, KY, and he was returned to military control at Fort Bragg, NC, on 21 April 1980.  

6.  On 25 April 1980, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 10 March to 21 April 1980.  

7.  On 29 April 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).




8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

9.  On 13 November 1980, the applicant’s immediate commander recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

10.  On 13 November 1980, the applicant’s intermediate commander also recommended approval with the issuance of an under other than honorable conditions discharge.

11.  On 18 November 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows, in effect, he was discharged on 18 December 1980 for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further shows the applicant had completed a total of 1 year, 2 months, and 27 days of creditable active service and had 54 days of lost time.

12.  There is no indication in the applicant’s records that he petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 
15-year statute of limitations.

13.  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.
14.  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.

15.  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 contends that his discharge should be upgraded.

2.  With respect to the applicant’s age, the evidence of record shows that the applicant was 18 years of age at the time he enlisted in the Regular Army and was nearly 19 years of age at the time he committed the offense that led to his discharge.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in the applicant's records, and the applicant did not provide substantiating evidence, that shows his repeated patterns of misconduct and indiscipline were the result of his age.

3.  With respect to the birth of his child, childbirth complications, and resulting stress, there is no evidence in the applicant’s records that he addressed this issue with his chain of command and/or support channels or that he requested an emergency leave.

4.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.


5.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy that requirement.  

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general, under honorable conditions discharge or an honorable discharge. 

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)                                         AR20090006395



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ABCMR Record of Proceedings (cont)                                         AR20090006395



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