BOARD DATE:	  29 September 2009

		DOCKET NUMBER:  AR20090008658 


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 be upgraded to general under honorable conditions.

2.  The applicant states he was forced to sign the discharge by his sergeant who mistreated him.  At the time his sergeant was selling drugs and he did not want to get involved.  There were command racial problems as well.  He walked away from his unit due to a high level of stress and threats against him.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 on 22 August 1980.  He completed training as a tactical wire operations specialist, progressed normally, and was stationed in Germany.  He was advanced to specialist four on 24 March 1982.

3.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice, as follows:

	a.  on 2 July 1982, for being absent without leave (AWOL) for 1 day and 

	b.  on 12 August 1982, for being AWOL for 14 days.

4.  The applicant went AWOL on 26 April 1983.  He turned himself in on 30 May 1983 only to again go AWOL the next day.  He remained absent until 1 October 1983.

5.  On 25 October 1983, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge.  He acknowledged that he was guilty of the charges or lesser included charges and that if the request was accepted he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

6.  On 3 November 1983, the discharge authority approved the applicant's request and directed he be reduced to the lowest enlisted grade and discharged under other than honorable conditions.

7.  The applicant was discharged on 18 November 1983 under other than honorable conditions.  He had completed 2 years, 8 months, and 9 days of creditable active service with 169 days of lost time.

8.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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 the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  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.

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he was forced to sign the discharge by his sergeant who was selling drugs.  He was mistreated and did not want to get involved.  There were command racial problems as well.  He walked away from his unit due to a high level of stress and threats against him.

2.  The applicant has provided no documentation and the record contains no indication to support the applicant's allegations that he was mistreated, that his sergeant was involved in drugs, or that there was any racial component to his separation.

3.  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.  There is no indication that the request was made under coercion or duress.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.

5.  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)                                         AR20090008658



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ABCMR Record of Proceedings (cont)                                         AR20090008658



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