IN THE CASE OF:	

		BOARD DATE:	27 August 2009  

		DOCKET NUMBER:  AR20090006903 


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 a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he deserves to have his discharge upgraded to a general, under honorable conditions discharge so that he may qualify for veterans benefits because of all the volunteer community work he has provided over the years as an ordained minister.  He goes on to state he was denied an upgrade of his discharge by the Army Discharge Review Board (ADRB) despite the written letters of recommendation he provided and yet he still helps anyone free of charge, regardless of race, color, creed, or national origin.

3.  The applicant provides two self-authored letters to the President of the United States seeking his assistance in getting his discharge upgraded and two third-party letters of recommendation 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 was born on 2 December 1956 and enlisted in the Regular Army (RA) in Philadelphia, PA on 23 February 1983 for a period of 2 years, training as an air defense artillery short range gunnery crewman, and participation in the Veterans Education Assistance Program (VEAP).  He completed his one-station unit training (OSUT) at Fort Bliss, TX and he was transferred to Hawaii on 28 June 1983.  He was advanced to the pay grade of   E-4 on 19 September 1983.

3.  On 17 November 1983, nonjudicial punishment (NJP) was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of pay and extra duty.

4.  On 22 November 1983, the applicant's commander initiated a recommendation to bar the applicant from reenlistment.  He cited the applicant's NJP, his substandard duty performance, his failure to timely pay his just debts, and his demonstrated severe lack of self-discipline and initiative by his failure to adapt to the changing requirements of the Army.

5.  The applicant submitted a statement in his own behalf whereas he stated that a bar to reenlistment was a heavy price to pay; however, he would make an earnest attempt to increase his performance and professionalism as a Soldier and member of the battalion.  The battalion commander approved the bar to reenlistment on 30 November 1983.

6.  The applicant went absent without leave (AWOL) on 16 December 1983 and remained absent until he returned to military control on 13 January 1984.  While not present in the available records, it appears that he was convicted by a general court-martial in January 1984 for that offense.

7.  The applicant again went AWOL on 28 March 1984 and he remained absent in desertion until he was apprehended by civil authorities in Philadelphia on
23 January 1991 and he was returned to military control at Fort Dix, NJ where charges were preferred against him for his AWOL offense.

8.  On 31 January 1991, after consulting with counsel, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation
635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good 

of the service - in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.

9.  The appropriate authority approved his request on 25 March 1991 and directed that he be discharged with an under other than honorable conditions discharge.

10.  Accordingly, on 25 April 1991, he was discharged with an under other than honorable conditions discharge while he was on excess leave, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served 1 year, 2 months, and 2 days of active service during with 2,520 days of lost time due to AWOL.

11.  The applicant applied to the ADRB for an upgrade of his discharge on
2 November 2004 contending that his discharge should be upgraded to a general discharge because he had been punished long enough for his behavior many years ago and because he needed a home loan from the Department of Veterans Affairs.  He also contended that due to his contributions to the community as an ordained minister and as a productive member of society, he deserved an honorable discharge.  He also asserted that at the time he was very young and did not fully understand the ramifications of his actions.  The applicant was 26 years of age at the time he enlisted.

12.  On 13 July 2005, after carefully considering all the evidence of record and the supporting documents submitted by the applicant, the ADRB determined that the applicant's discharge was both proper and equitable under the circumstances and voted to deny his request for an upgrade of his discharge. 

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.  Paragraph 3-7b of 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’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 courtmartial was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.  

4.  The applicant’s contentions and supporting documents are not sufficiently mitigating to warrant relief under the circumstances given his extended absence during such a short period of service and the lack of extenuating circumstances to explain his absence and misconduct. 

5.  While the applicant is commended for any community service he may be providing, that in itself has never been a basis to upgrade a properly issued discharge that correctly reflects a person's service during the period in question. 

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 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.



      __________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)                                         AR20090006903



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ABCMR Record of Proceedings (cont)                                         AR20090006903



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