IN THE CASE OF:	  

		BOARD DATE:	       8 October 2009

		DOCKET NUMBER:  AR20090006986 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he went absent without leave (AWOL) for reasons he thought were good at the time.  He states it's been over 24 years since he went AWOL and he's lost several chances at good jobs because of his General Discharge (sic) that he knows was his own fault.  He further states he now knows it was not a good idea and if he could get it changed it would help him when applying for certain jobs.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 13 March 1985 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 personnel records show he enlisted in the Regular Army (RA) on 14 July 1982 for a period of 4 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant was assigned to Company B, 2nd Engineer Battalion, 
2nd Infantry Division in Korea from 12 November 1982 to 9 November 1983.  He was advanced to the rank/grade of specialist (SP4)/E-4 on 1 July 1984.

4.  On 9 December 1983, the applicant was assigned to Company A, 
13th Engineer Battalion, 7th Infantry Division at Fort Ord, CA.  On 19 November 1984, he departed AWOL and on 19 December 1984 he was dropped from the rolls of the Army.  On 22 January 1985, he surrendered to military authorities.

5.  On 23 January 1985, court-martial charges were preferred against the applicant for being AWOL during the period from on or about 19 November 1984 to on or about 22 January 1985.

6.  On 23 January 1985, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will, he understood the elements of the offense he was charged with, and that he was guilty of the charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

7.  The applicant's intermediate commanders recommended approval of his request for discharge and that he receive an Under Other Than Honorable Conditions Discharge Certificate.
  
8.  On 11 February 1985, the appropriate authority approved the applicant's request for discharge for the good of the service, directed he be reduced to private (PV1)/E-1, and that he be issued an Under Other Than Honorable Conditions Discharge Certificate.
9.  On 13 March 1985, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service - in lieu of court-martial.  He had completed 2 years, 
5 months, and 27 days of active service that was characterized as under other than honorable conditions.  He also had 64 days of time lost.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 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 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.  

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 voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged that he could receive an under other than honorable conditions discharge and that he may be ineligible for many or all Army benefits to include benefits administered by the VA.

2.  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 court-martial was administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would tend to jeopardize his rights.

4.  The ABCMR does not upgrade discharges based solely on the passage of time or to make an individual eligible for benefits from another agency.

5.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general, under honorable conditions or an honorable discharge.

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 that 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)                                         AR20090006986



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ABCMR Record of Proceedings (cont)                                         AR20090006986



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