IN THE CASE OF:	  

		BOARD DATE:	        17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090008287 


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 discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states, in effect, that he was told that his under other than honorable conditions discharge was supposed to be corrected to honorable after 90 days and this has not been done.

3.  The applicant submitted a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and correspondence he received from the National Personnel Records Center in response to his request for separation records.

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 record shows he enlisted in the Army Reserve on 23 April 1987 and in the Regular Army on 12 May 1987.  He successfully completed one-station unit training at Fort Benning, Georgia.  Upon completion of his training he was awarded military occupational specialty 11B (Infantryman).

3.  Item 18 (Appointments and Reductions) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows he was not advanced in rank and pay grade while he served on active duty and remained a private/E-1 throughout his service.  The record also contains no documented significant acts of valor or achievement that would merit consideration in the decision to upgrade the applicant's discharge.

4.  Item 21 (Time Lost) of the applicant's DA Form 2-1 shows he was absent without leave from his unit from 19 October 1987 through 7 December 1987.  DA Forms 4187 (Personnel Action) on file in the applicant's service personnel records corroborate this entry.  The applicant was reported as being absent without leave on 19 October 1987 and was dropped from the rolls of his unit on 18 November 1987.  The applicant turned himself in to the Mendocino County Sheriff's Office, Ukiah, California, on 7 December 1987.  He was returned to military control and was reported as present for duty at the Personnel Control Facility, Fort Ord, on 8 December 1987.

5.  On 17 December 1987, court-martial charges were brought against the applicant for absenting himself without authority from his unit from 19 October 1987 and remaining so absent until 8 December 1987.  The applicant was informed of the charges against him on the same date.

6.  On 17 December 1987, the applicant voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service.  In his request for discharge the applicant stated he understood that he could request discharge for the good of the service because charges had been preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.

7.  The applicant stated he was making a request for discharge of his own free will and had not been subjected to coercion by any person.  The applicant stated he had been advised of the implications that were attached to his request and, moreover, he stated that under no circumstances did he desire further rehabilitation and he had no desire to perform further military service.

8.  The applicant acknowledged that prior to completing his request for discharge, he had been afforded the opportunity to consult with appointed counsel for consultation who had fully advised him of the nature of his rights under the UCMJ.  He stated that although counsel had furnished him legal advice, the decision to seek discharge was his own.

9.  The applicant acknowledged he understood that if his request was accepted he could be discharged under other than honorable conditions and furnished an Under Other than Honorable Conditions Discharge Certificate.  He acknowledged he understood that as a result of the issuance of such a discharge he could be deprived of all benefits administered by the Veterans Administration and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could expect to encounter substantial prejudice in civilian life if issued an under other than honorable conditions discharge.

10.  The applicant further acknowledged that he understood that there was no automatic upgrading nor review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished to have his discharge reviewed.  He also acknowledged that the act of consideration by either Board did not imply that his discharge would be upgraded.

11.  On a DA Form 2496 (Disposition Form), subject:  Request for Discharge under the Provisions of Chapter 10 of Army Regulation 635-200, the Commander, Processing Company, U.S. Army Personnel Control Facility; the Commander, U.S. Army Personnel Control Facility; and the Executive Officer, Bayonet Command Support Brigade, recommended approval of the applicant's request for discharge and further recommended that he be furnished a discharge characterized as under other than honorable conditions.  A representative of the Office of the Staff Judge Advocate reviewed the applicant's request and concurred with the request and the recommendation made by the applicant's chain of command on 23 February 1988.

12.  The commander of the Bayonet Command Support Brigade, Fort Ord, approved the applicant's request for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

13.  On 1 April 1988, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  The narrative reason for separation entered on the applicant's DD Form 214 was for the good of the service in lieu of trial by court-martial.  The applicant's service was characterized as under other than honorable conditions.  On the date of the applicant's discharge, he had completed 9 months of net active service with lost time from 19 October 1987 through 7 December 1987.

14.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this regulation provides, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after charges had been preferred.  An under other than honorable conditions discharge was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge be granted if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

16.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  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 has failed to submit evidence that would satisfy this requirement.

2.  The evidence shows the applicant absented himself without leave from his unit and was dropped from the rolls of his organization before he gave himself up and was returned to military control.

3.  Due to this absence, court-martial charges were brought against him.  Rather than face a court-martial, the applicant voluntarily requested discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He acknowledged that he was making the request of his own free will without coercion.  The applicant stated he had been advised of the implications that were attached to his request and he had no desire to perform further military service.

4.  Contrary to the applicant's assertion he was told that his under other than honorable conditions discharge would be upgraded to an honorable discharge after 90 days, the application he submitted clearly stated, "that he understood that there was no automatic upgrading nor review by any government agency of a less than honorable discharge" and that he must apply to the ADRB or the ABCMR if he wished to have his discharge reviewed.  He also acknowledged that the act of consideration by either Board did not imply that his discharge would be upgraded.

5.  The applicant was discharged under the provisions of Army Regulation 
635-200, chapter 10, in lieu of court-martial at his request.  The applicable regulation shows that the characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows the applicant was aware of this prior to making his request.

6.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge to a general or to a fully 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.



      ____________XXX_____________
                 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)                                         AR20090008287



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ABCMR Record of Proceedings (cont)                                         AR20090008287



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