BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090010251 


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 under other than honorable conditions discharge be upgraded to an honorable or general discharge.

2.  The applicant states he was AWOL (absent without leave) because when he arrived at home, his wife and children were gone.  He states that he was devastated and sought to find them.  He states that he returned a week later and was reduced to pay grade E-1 and discharged.  He states that he is sorry and made a bad decision.

3.  The applicant provides no additional documentary evidence in support of this 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's military records show he enlisted in the Regular Army on 10 December 1984.  He reenlisted for 6 years on 10 September 1986.  He was awarded the military occupational specialty of chemical operations specialist and was promoted to pay grade E-5.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  The applicant's records indicate he was AWOL from 21 May 1991 to 22 May 1991 and reduced to pay grade E-4.

4.  On 19 November 1991, the applicant was charged with being AWOL beginning on 16 October 1991.  He was returned to military control on 27 February 1992. 

5.  While the applicant's discharge packet is not available, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 24 June 1992 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 7 years, 2 months, and 3 days of active military service with 135 days of lost time.

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

7.  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, 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  At the time, a discharge under other than honorable conditions was 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 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 discharge with characterization of service 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 he had family issues that led to his AWOL.  His records show that he had 135 days of lost time due to being AWOL.  He was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, he would have admitted guilt and voluntarily requested discharge in lieu of trial by court-martial.

2.  Contrary to the applicant's contention, he did not return a week after he discovered his wife and children were gone.  He returned 135 days later.

3.  In the absence of evidence to the contrary, it is presumed that what the Army did was correct.  As such, even though the applicant's records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.

4.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  In view of the foregoing, there is no basis for granting 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)                                         AR20090010251



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ABCMR Record of Proceedings (cont)                                         AR20090010251



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