IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090008904 


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 general discharge (sic) be upgraded to an honorable discharge.

2.  The applicant states he was accepted into two different National Guard organizations after his discharge from the Regular Army.  The applicant adds that he now needs Department of Veterans Affairs (VA) benefits.

3.  The applicant does not provide any additional documents.

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 military records show that he enlisted in the Regular Army on 11 July 1991, and was awarded the military occupational specialty of infantryman.

3.  On 25 March 1992, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 6 February to 16 March 1992.

4.  On the same day, the applicant requested discharge in lieu of trial by court-martial for the good of the service.  In his request he acknowledged that he understood that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood he would have to apply to the Army Discharge Review Board (ADRB) or to this board for an upgrade of his discharge.  He also acknowledged that he understood that the act of consideration by either board did not imply his discharge would be upgraded.

5.  The applicant's request was approved by the appropriate authority.  Accordingly, on 1 May 1992 the applicant was discharged under other than honorable conditions (UOTHC) (not a general discharge).

6.  On 6 February 1996, the applicant enlisted in the Army National Guard (ARNG) with a waiver.  He served continuously until his enlistment in the Air National Guard on 26 January 2000 in pay grade E-4.  The applicant's service record for the Air National Guard is not available for review.

7.  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 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 UOTHC discharge is normally considered appropriate. 

8.  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.  

9.  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.

10.  On 9 January 1997, the ADRB denied the applicant's request for an upgrade of his UOTHC discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was AWOL for 37 continuous days.  Such serious misconduct certainly warranted a UOTHC discharge.

2.  While it is commendable that the applicant has subsequently served his state and his country in the National Guard, this does not change nor mitigate his misconduct while on active duty.

3.  In view of the foregoing, there is no basis to grant 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)                                         AR20090008904



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090008904



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1