IN THE CASE OF:	

		BOARD DATE:	9 September 2009    

		DOCKET NUMBER:  AR20090007414 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states that he was told that his discharge would be upgraded    2 years from his discharge.

3.  The applicant provides no additional documents with 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 enlisted in the Regular Army in Montgomery, Alabama on 17 July 1979 for a period of 4 years.  He completed his one-station unit training (OSUT) as a light weapons infantryman at Fort Benning, Georgia and remained assigned there after training.

3.  On 9 June 1980, nonjudicial punishment was imposed against him for going on sick call to avoid a sub-unit evaluation and for falsifying a sick slip.  His punishment consisted of a reduction to the pay grade of E-1, extra duty and a forfeiture of pay (suspended until 2 December 1980).

4.  The applicant got married in Selma, Alabama on 18 April 1981 and on 4 May 1981, he departed for assignment to Germany.

5.  The applicant was granted ordinary leave to return to the continental United States with a return date back to his unit in Germany on 25 January 1982.  However, he failed to report as ordered and was reported absent without leave (AWOL) on 25 January 1982.  He remained absent in desertion until he surrendered to military authorities at Fort Benning on 29 February 1982 and was transferred to Fort Bragg, North Carolina on 9 March 1982,  where charges were preferred against him on 10 March 1982 for being AWOL from 25 January to 28 February 1982.

6.  On 12 March 1982, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he understood the charges that had been preferred against him, 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.  Additionally, he acknowledged that he had been advised of the maximum punishment he could receive for his offense if convicted by the contemplated court-martial.   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 elected not to submit a statement in his own behalf.

7.  The commander of the personnel control facility interviewed the applicant and the applicant informed him that he had gone AWOL because he missed his wife and was emphatic in his statement that he wanted nothing further to do with the Army, that he was aware of the consequences of a discharge under other than honorable conditions, and that he would go AWOL again if forced to remain in the Army.

8.  The appropriate authority approved his request on 10 May 1982 and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions on 27 May 1982, 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 2 years, 9 months and 8 days of total active service and had 35 days of lost time due to AWOL.
 
10.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board'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 the 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 at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate and there have never been any provisions for an automatic upgrade of such discharges.

12.  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 administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.
  
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.  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)                                         AR20090007414





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ABCMR Record of Proceedings (cont)                                         AR20090007414



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