IN THE CASE OF:	  

		BOARD DATE:	       10 November 2009

		DOCKET NUMBER:  AR20090010053 


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 under other than honorable conditions be upgraded to a discharge under honorable conditions (general discharge).

2.  The applicant states that his discharge was the result of an unjust recommendation by his first sergeant because of his involvement with his wife to take his car away from him.  He goes on to state that he did not receive justice, that no one asked him why or considered the mental impact.  He continues by stating that the Board should review his record of military service.

3.  The applicant provides no additional documents with 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 in the Regular Army on 28 September 1976 for a period of 3 years, training as a motor transport operator and assignment to Europe.  He had a 10th grade education level at the time of his enlistment.  He completed his training and was transferred to Germany on 23 January 1977.  He was advanced to the pay grade of E-4 on 20 March 1978.

3.  He was honorably discharged on 9 April 1979 for the purpose of immediate reenlistment.  He reenlisted on 10 April 1979 for a period of 3 years and training as an armor crewman.  He departed Germany on 22 September 1979 and was transferred to Fort Knox, Kentucky to undergo armor crewman training. 

4.  He completed his training and was transferred to Fort Benning, Georgia.  He was promoted to the pay grade of E-5 on 13 February 1980 and on 4 March 1981, he reenlisted for a period of 6 years and a selective reenlistment bonus.  On 29 April 1981, he got married and on 1 May 1981, he was transferred to Erlangen, Germany for assignment to an armor company.  He was promoted to the pay grade of E-6 on 1 August 1982.

5.  He departed Germany on 19 April 1984 and was transferred to Fort Stewart, Georgia.  On 3 December 1984, it was discovered that the applicant had been erroneously promoted to the pay grade of E-6 because he did not have a high school diploma or equivalency and his promotion to the pay grade of E-6 was revoked.

6.  On 10 January 1985, the applicant's commander initiated action to bar him from reenlistment.  He cited as the basis for his recommendation that the applicant had received numerous letters of indebtedness, that he had been arrested by civil authorities for simple assault, that he was confined by civil authorities for 3 days, that his performance had been marginally satisfactory, that he had been counseled numerous times for being late for duty and his repeated indebtedness and that he had failed to respond to the numerous counseling sessions.

7.  The applicant elected not to submit a statement in his own behalf and the appropriate authority approved the bar to reenlistment on 8 February 1985.

8.  Meanwhile, the applicant went absent without leave (AWOL) on 25 January 1985 and remained absent until he was apprehended on 9 April 1985 and was returned to military control at Fort Stewart.  On 10 April 1985, he again went AWOL and remained absent until he was apprehended on 15 May 1985 and was again returned to military control where charges were preferred against him on 16 May 1985 for the AWOL charges and breaking restriction.

9.  On 17 May 1985, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also acknowledged that he had been advised that he could submit any statements he desired in his own behalf that would accompany his request for discharge and elected not to submit a statement in his own behalf.  

10.  The appropriate authority (a major general) approved his request on 29 May 1985 and directed that he be discharged under other than honorable conditions.

11.  Accordingly, on 6 June 1985, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 9 years, 1 month, and 19 days of total active service and had approximately 108 days of lost time due to AWOL.

12.  There is no indication in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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’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 courtmartial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.   

3.  The applicant’s contentions have been noted; however, they are not supported by the evidence of record and given that he chose not to provide any mitigating circumstances at the time, his contentions are not sufficiently mitigating to warrant an upgrade of his discharge when considering the length of his absence, his rank at the time and his undistinguished record of service.

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.



      ______ _   _______   ___
               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)                                         AR20090010053





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ABCMR Record of Proceedings (cont)                                         AR20090010053



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