IN THE CASE OF:	

		BOARD DATE:	1 September 2009 

		DOCKET NUMBER:  AR20090006907 


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 to honorable.

2.  The applicant states, in effect, he believes his discharge should be upgraded.

3.  The applicant provides no additional documentation 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's military records show he enlisted in the Regular Army in pay grade E-1 on 10 September 1984 for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 76V, Materiel Storage and Handling Specialist.  He was advanced to pay grade E-2 on 10 March 1985.

3.  On 7 June 1985, the applicant accepted punishment under Article 15, Uniform Code of Military Justice, for committing an assault upon another Soldier by striking him on the head with a means to produce grievous bodily harm on 27 April 1985.  The punishment imposed was a reduction to pay grade E-1 (suspended until 7 December 1985), a forfeiture of $133.00 pay per month for 1 month (suspended until 7 December 1985), and 14 days of extra duty.  He elected to appeal the punishment and his appeal was denied on 17 June 1985.

4.  On 16 July 1985, the suspension of the punishment of reduction to pay grade E-1 and forfeiture of $133.00 pay per month for 1 month was ordered vacated based on the applicant absenting himself from his appointed place of duty on 8 July 1985.

5.  The applicant was reported absent without leave (AWOL) on 15 August 1985 and he was dropped from the rolls of his organization on 16 September 1985.  He was apprehended by civilian authorities and returned to duty on 21 April 1987.

6.  On 30 April 1987, a DD Form 458 (Charge Sheet) was prepared by the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, Kentucky.  The applicant was charged with one specification of AWOL from 15 August 1985 to 21 April 1987.

7.  On 30 April 1987, after consulting with counsel, the applicant submitted a statement wherein he knowingly, willingly, and voluntarily declared that he was AWOL from 15 August 1985 to 21 April 1997.  He acknowledged he was making the admission for administrative purposes only so he could process out of the Army and in doing so he could be given an other than honorable discharge.

8.  On 1 May 1987, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.   He also stated that under no circumstances did he desire further rehabilitation for he had no desire to perform further military service.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate and, as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veteran's Administration.  He waived his rights and elected not to submit a statement in his own behalf.

9.  On 5 May 1987, the Commander, Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, recommended approval of the applicant's request.  She stated that based on the applicant's previous record, punishment could be expected to have a minimal rehabilitative effect and a discharge at that time was in the best interest of all concerned.

10.  On 5 May 1987, the Commander, U.S. Army Personnel Control Facility, Fort Knox, recommended approval of the applicant's request for discharge for the good of the service.

11.  On 8 May 1987, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued and that the applicant be reduced to pay grade E-1.

12.  The applicant was discharged on 19 June 1987 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He was credited with 1 year, 1 month, and 4 days of total active service.  He was also credited with lost time from 15 August 1985 through 20 April 1987 due to AWOL.

13.  On 25 September 1989, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

14.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had 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 was normally considered appropriate.

15.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.
16.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant was punished under Article 15 for assault and charged with AWOL from 15 August 1985 to 21 April 1987.  Upon his return to military control he requested discharge in lieu of facing a court-martial.  The applicant waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully discharged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  Based on the available evidence, there is no basis for the upgrade of his discharge to either a fully honorable or a general discharge.

3.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.

4.  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 any evidence that would satisfy this requirement.

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

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)                                         AR20090006907



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ABCMR Record of Proceedings (cont)                                         AR20090006907



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