IN THE CASE OF:	  

		BOARD DATE:	       17 September 2009

		DOCKET NUMBER:  AR20090007984 


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 to a general discharge.

2.  The applicant states, in effect, that he was involuntarily extended so he could complete his 1 year tour in Korea.  He contends that he was 20 years old and married, that his wife was in California, that he and his wife were young and immature, and that their marriage was unstable.  He goes on to state that separation in their marriage was more than they could bear at that time, that he had already spent 6 months in Korea, and that his wife was not tolerant of him leaving again so he stayed in California instead of returning to Korea.  He indicates that he contacted the Administrative Board at Fort Ord and explained his situation and he was told to come in and he would be out-processed and discharged.  He points out that he was discharged 20 years ago and he has matured since then, that he loves his country and is proud to have been a U.S. Soldier and served in the Army, and that he was promoted to sergeant prior to his discharge.        

3.  The applicant provides a statement from his wife and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 19 April 1967.  He enlisted in the Regular Army on 3 September 1985 for a period of 4 years.  He successfully completed One Station Unit Training in military occupational specialty 16S (Man Portable Air Defense).  He attained the rank of specialist four on 1 May 1987.

3.  The applicant arrived in Korea on 21 June 1988.  On 23 June 1988, his DEROS [Date Eligible for Return From Overseas] was adjusted (involuntary extension) to 31 August 1989 due to his foreign service tour.

4.  On 7 January 1989, the applicant did not return from leave and commenced a period of being absent without leave (AWOL).  He returned to military control on 20 February 1989.  

5.  Records show the applicant was promoted to sergeant effective 1 March 1989; however, these orders were revoked on 29 March 1989.

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 shows he was discharged under other than honorable conditions on 12 December 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 4 years, 1 month, and 26 days of creditable active service with 45 days of lost time due to being AWOL.

7.  In support of his claim, the applicant provided a letter, dated 14 April 2009, from his wife.  She attests that she put stress on her husband to stay in California rather than return to Korea, that their marriage was unstable, that they both were young and made poor judgments, and that she was at great fault for his decision.  She states that her husband was a good Soldier and well respected.

8.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

9.  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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

10.  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.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed One Station Unit Training.  In addition, he completed over 3 years of service prior to going AWOL.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with 
applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090007984



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ABCMR Record of Proceedings (cont)                                         AR20090007984



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