IN THE CASE OF:	  

		BOARD DATE:	  3 September 2009

		DOCKET NUMBER:  AR20090007783 


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 an upgrade of his under other than honorable conditions discharge to an under honorable conditions (general) discharge. 

2.  The applicant states that he was young and immature at the time and that while he was stationed in Korea, he was greatly affected by the death of his uncle, who had previously raised him, and the dangerous living conditions of his mother and sister in his hometown.  He adds that upon his return to the United States, the family problems continued.  He thought he could handle the situation while on leave, but ended up exceeding his leave by 32 days.  He was accordingly reported in an absent without leave (AWOL) status and was ultimately discharged.  He concludes that he feels his service was honorable because his offense was an isolated incident.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 November 1992; several character reference letters from family members and/or friends; and a copy of his criminal record check, 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 records show he was born on 30 June 1971 and enlisted in the Regular Army at 18 years of age for a period of 4 years on 20 June 1989.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records also show he served in Korea from on or about 27 September 1990 to on or about 7 November 1991.  His awards and decorations include the Army Service Ribbon, the National Defense Service Medal, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar, the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, and the Overseas Service Ribbon.

4.  On 7 August 1992, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 7 September 1992.  He surrendered to military authorities at Fort Polk, LA, on 9 September 1992.

5.  On 16 September 1992 court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 7 August 1992 through on or about 9 September 1992.  

6.  On 17 September 1992, 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).

7.  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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

8.  On 28 October 1992, the applicant's immediate commander remarked that the applicant had become disillusioned with the military and his retention was not in the best interest of the service.  He further recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions character of service. 

9.  On 30 October 1992, the Chief of Criminal Law Division, Office of the Staff Advocate General, Fort Sill, OK, reviewed the applicant’s request for discharge and determined that there were no legal objections to the further processing in accordance with the unit commander’s recommendation.

10.  On 30 October 1992, 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 and be reduced the lowest enlisted grade.  The applicant was accordingly discharged on 16 November 1992.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 3 years, 2 months, and 11 days of creditable active military service and had 33 days of lost time.

11.  On 19 May 2000, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.  

12.  The applicant submitted several character reference letters and/or statements of support from family members and/or friends that essentially describe his unauthorized absence as the result of a direct need to take care of his mother and sister at the time.  The authors also describe the applicant as an honest, caring, and respectful person who always loved the Army and continues his service by being involved in his church and community.

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.  The evidence of record shows that the applicant was 18 years of age at the time he enlisted and 21 years of age at the time he committed his offenses.  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 misconduct was the result of his age.

3.  The applicant’s contention that his immediate family members were threatened as a result of the living conditions in his hometown as well as the death of his uncle were considered; however, they are not sufficiently mitigating in upgrading his discharge.  The applicant had many legitimate avenues through which he could have received assistance or relief, had he chosen to use them.

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.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 this requirement.  Based on his record of indiscipline, the applicant's service clearly did 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 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)                                         AR20090007783



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ABCMR Record of Proceedings (cont)                                         AR20090007783



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