IN THE CASE OF:	  

		BOARD DATE:	        5 November 2009

		DOCKET NUMBER:  AR20090009971 


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 a general, under honorable conditions discharge.

2.  The applicant states that his marriage at the time was in trouble and that he was working in meaningless jobs.  He adds that when he decided to join the Army, he explained to his recruiter the situation and requested to remain in the United States during the first year of his enlistment.  The recruiter assured him that it would not be a problem.  He then enlisted and went on to basic training where he excelled and he was cited for his leadership potential.  His drill sergeant even asked him if he wanted to become a drill instructor.  He then went on to advanced individual training (AIT) at Fort Eustis, VA, where he again did very well.  He adds that right before graduation, he was told he would be going to Panama.  He then recalled the promise made by his recruiter and addressed the issue with his chain of command, but nothing was changed.  He also states that he then decided to go in an absent without leave (AWOL) status.  However, he then turned himself in and was sent to Fort Devens, MA, where the officer who ultimately discharged him was very impressed with his records.  He also expresses sorrow about his actions but feels he exhausted all available avenues at the time and believes an upgrade should be appropriate.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 11 December 1980; a copy of a certificate, dated 17 January 2005, from the Veterans of Foreign Wars of the United States (VFW); a copy of a certificate of achievement, dated 30 May 1980; and a copy of an undated superior performance certificate, in support of his request.
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 records show he enlisted in the Regular Army (RA) for a period of 4 years on 4 April 1980.  In connection with this enlistment, he completed a DA Form 3286 (Statement of Enlistment) which shows that he would receive training in military occupational specialty (MOS) 61C (Watercraft Engineer).  This form does not indicate he was promised to remain in the United States during the first year of his enlistment or any other promises.

3.  The applicant's records also show he completed basic combat training at Fort Jackson, SC, and he was subsequently reassigned to Fort Eustis, VA, for completion of AIT.

4.  On 4 August 1980, the applicant departed his training unit in an AWOL status. However, he surrendered to his unit on 6 August 1980.

5.  On 7 August 1980, the applicant again departed his unit in an AWOL status and on 6 September 1980, he was dropped from the rolls (DFR) of the Army.  He surrendered to military authorities at Fort Dix, NJ on 1 October 1980 and he was transferred to Fort Devens, MA.

6.  On 10 October 1980, court-martial charges were preferred against the applicant for two specifications of being AWOL during the period on or about 4 August 1980 to on or about 6 August 1980 and on or about 7 August 1980 to on or about 1 October 1980.

7.  On 22 October 1980, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

8.  In his voluntary request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 30 October 1980, the applicant's immediate commander recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service.  The immediate commander remarked that in his opinion, the applicant had no motivation for continued service and he would not respond to either counseling or rehabilitation.  He also remarked that the applicant was pending trial for an offense punishable by a bad conduct or dishonorable discharge and that the administrative burdens involved in the court-martial and possible confinement were not considered warranted in view of the nature of his offense.

10.  On 30 October 1980, the applicant's intermediate commander reviewed the applicant's request and recommended approval of the applicant’s discharge with an under other than honorable conditions discharge.

11.  On 6 November 1980, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  On 11 December 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed a total of 6 months and 12 days of creditable active military service and he had 56 days of lost time due to AWOL.

12.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 
15-year statute of limitations.
13.  The applicant submitted copies of three certificates as follows:

	a.  a VFW certificate, dated 17 January 2005, for his faithful support of veterans and their families; 

	b.  a certificate of achievement, dated 30 May 1980, for receiving the highest rifle marksmanship score during basic combat training; and

	c.  an undated superior performance certificate for rapidly acquiring basic military skills and showing potential for the future.

14.  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.

15.  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 discharge should be upgraded to general, under honorable conditions.

2.  The applicant's superior achievements during basic combat training are noted. Additionally his contention that he was undergoing marital problems and that he was promised to remain the United States during the first year of his enlistment were considered.  However, there is no indication in the applicant's records that he was promised to remain in the United States during the first year of his enlistment or that he was undergoing marital problems at the time or that he addressed such problems with his chain of command and/or support channels.


3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his repeated record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general, under honorable conditions 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.



      __________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)                                         AR20090009971



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ABCMR Record of Proceedings (cont)                                         AR20090009971



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