IN THE CASE OF:	  

		BOARD DATE: 	        12 November 2009 

		DOCKET NUMBER:  AR20090009845 


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

2.  The applicant states he does not believe his discharge was unjust at the time. He adds his error in behavior occurred 30 years ago, he has realized his mistake, and requests that the character of his service be changed.

3.  The applicant provides no additional documentary evidence 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 enlisted and entered active duty in the Regular Army for a period of 3 years on 26 October 1978.  

3.  A DD Form 458 (Charge Sheet), dated 17 May 1979, shows the Commander, Processing Company, U.S. Army Personnel Control Facility, Fort Ord, CA, preferred charges against the applicant of being absent without leave from 5 April to 15 May 1979.

4.  On 18 May 1979, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subject to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and state law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  It also states he was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge; however, the document indicates that statements in his own behalf were not submitted with his request.

	a.  The applicant's separation packet shows that a major serving in the Judge Advocate General’s Corps certified with his signature he had advised the applicant of the possible effects of an under other than honorable discharge, and of the procedures and rights available to him.

   b.  The immediate commander and intermediate commanders recommended approval of the applicant's request for discharge and that an Under Other Than Honorable Discharge Certificate be issued.

5.  On 7 June 1979, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The commander also directed the applicant be reduced to the lowest enlisted grade and furnished an Under Other Than Honorable Conditions Discharge Certificate.

6.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 15 June 1979 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, and his service characterized as under other than honorable conditions.  At the time he had completed 6 months and 10 days of net active service and he had 40 days of time lost.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  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.

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 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.

10.  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.

11.  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 under other than honorable conditions discharge should be upgraded because his error in behavior occurred 30 years ago and he has realized his mistake.


2.  The applicant's 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 voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

3.  The applicant's contentions and the amount of time that has passed since his discharge were carefully considered; however, it is insufficient as the sole basis for upgrading his discharge.

4.  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)                                         AR20090009845



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ABCMR Record of Proceedings (cont)                                         AR20090009845



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