BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090010595 


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, in effect, that his discharge under other than honorable conditions be upgraded to an honorable or general discharge. 

2.  The applicant essentially states that he did not know that his discharge was not upgraded, and that when he was discharged, he was informed it would be automatically upgraded after 6 months.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) for the period 10 February 1976 to 21 September 1978, his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period 
22 September 1978 to 1 September 1980, and an undated self-authored statement.

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 was born on 28 December 1957.  He enlisted in the Regular Army (RA) on 10 February 1976.  He completed basic and advanced individual training and was awarded military occupational specialty 63F (Recovery Specialist).  On 21 September 1978, the applicant was honorably discharged for immediate reenlistment in the rank of specialist/E-4.  He had completed 2 years, 7 months, and 12 days of creditable active service.  

3.  On 22 September 1978, the applicant reenlisted in the RA.  On 10 September 1979, while assigned to Fort Benning, GA the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of 14 days of extra duty, and a reduction in rank to private first class/E-3 (suspended).  This suspension was later vacated and duly executed.

4.  On 8 January 1980, the applicant accepted NJP under the UCMJ for leaving his appointed place of duty, to wit:  battalion guard duty.  His punishment consisted of a forfeiture of $301.00 pay and 1 month of extra duty.

5.  On 14 February 1980, the applicant left his unit in an absent without leave (AWOL) status.  On 14 March 1980, he was dropped from the rolls of the Army, classified as a deserter, and he remained in this status until he was apprehended by civil authorities in Benton Harbor, Michigan on 19 June 1980.  He was subsequently assigned to the United States Army Personnel Control Facility at Fort Knox, Kentucky.

6.  On 2 July 1980, the applicant was informed that charges had been preferred against him for absenting himself without authority from his unit on or about 
14 February 1980, and remaining so absent until on or about 19 June 1980; an offense punishable under the UCMJ with a punitive discharge.

7.  On 3 July 1980, the applicant submitted a statement that was also signed by his defense counsel.  In this statement, the applicant declared that he had been advised by his defense counsel that at that time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial due to no fault of the government, but merely to the time required to request and mail the documents and records.  He also acknowledged that he had been advised by military counsel that he could not completely advise him without those records, and that he realized his defense counsel was limited by the few records that were available as to the advice he could give.  Nevertheless, knowing all this to be true, the applicant waived all defenses that may have become known had his defense counsel been able to review his records.  He also willingly and voluntarily declared that he was AWOL from the United States Army from 14 February 1980 to 19 June 1980.  The applicant made this admission for administrative purpose only so he could process out of the Army, and realized in doing so he could be issued an other than honorable conditions discharge.  He also declared that his military defense counsel had explained to him to his complete understanding and satisfaction all of the legal and social ramifications of this type of discharge, and what it would mean to him in the future.  

8.  On 3 July 1980, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  In his request, he acknowledged that he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and that he was not subjected to any coercion whatsoever by any person.  He also acknowledged he understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He further stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

9.  In his request for discharge, the applicant acknowledged that he had been afforded the opportunity to consult with appointed counsel for consultation, who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, any relevant lesser included offenses, the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  The applicant acknowledged that he understood although his legal counsel furnished him legal advice, the decision was his own.

10.  The applicant also acknowledged he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He further acknowledged that he had been advised and understood the possible effects of an under other than honorable conditions discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he acknowledged he understood he could expect to encounter substantial prejudice in civilian life if an under other than honorable conditions discharge was issued.  He elected not to submit a statement in his own behalf.  The applicant was placed on excess leave on 3 July 1980.

11.  On 23 July 1980, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, chapter 10, directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate and that he be reduced to the rank of private/E-1.  On 1 September 1980, the applicant was discharged accordingly.

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

13.  The applicant provided an undated self-authored statement in which he essentially stated that it is not his intention to deny that he disobeyed the rules and regulations that govern this matter, and admitted he made a bad choice to go AWOL.  He also contends that he was young at the time in question and that after being informed by family that his wife and sister were having crises with their health, he made the decision to go AWOL after several requests for leave [were denied].  

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 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 discharge under other than honorable conditions is normally considered appropriate.

15.  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.



16.  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 under other than honorable conditions should be upgraded to an honorable discharge.

2.  The applicant's contention that he only went AWOL after he learned of his wife's and sister's health crises was considered, as was his claim that his requests for leave at the time were denied despite their health conditions.  However, he provided no evidence to corroborate that either his wife or his sister was having a health crises.  He also provided no evidence which shows that he was denied leave after presenting evidence concerning his circumstances, such as an American Red Cross verification of his wife's and or sister's condition.

3.  The applicant's contention that he was informed his discharge would be upgraded after 6 months was also considered.  However, there has never been a regulatory provision which provided that a discharge would be upgraded after a certain amount of time, and the ABCMR does not upgrade discharges based solely on the passage of time.

4.  The applicant's contention that he was young at the time of his offenses was also considered.  Records show the applicant was over 22 years of age at the time he went AWOL.  There is also no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

5.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and or regulation were not met, or that his rights were violated during the separation process, therefore, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.



6.  The applicant's record of service shows that he went AWOL and was subsequently dropped from the rolls of the Army and classified a deserter.  It also shows that he only returned to military control after being apprehended by civil authorities.  Based on this record of indiscipline, the applicant's 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 an honorable or general 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)                                         AR20090010595



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ABCMR Record of Proceedings (cont)                                         AR20090010595



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