BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011691 


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 general discharge.

2.  The applicant states, in effect, that he desires to have his discharge upgraded and the results of the Board forwarded to his mother's address. 

3.  The applicant provides a letter with his mother's address.

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 11 September 1979 for a period of 4 years, training as a recovery specialist (military occupational specialty 63F), and assignment to the 4th Infantry Division (Fort Carson, Colorado). 
3.  He completed his basic training at Fort Dix, New Jersey and was transferred to Aberdeen Proving Ground (APG), Maryland on 9 November 1979 to attend his advanced individual training (AIT).

4.  On 3 December 1979, he departed absent without leave (AWOL) and he remained absent in a desertion status until he surrendered to military authorities in Philadelphia on 6 August 1980 and was returned to Fort Dix, where charges were preferred against him for the AWOL offense.

5.  On 19 August 1980, he again departed AWOL and remained absent in a desertion status until he surrendered to military authorities in Pittsburgh, Pennsylvania on 30 March 1981.  He was again returned to Fort Dix where charges were preferred against him for the two periods of AWOL.

6.  At the time of his return he indicated that he went AWOL because he was not the kind of person for the Army and he did not want to stay in the Army.

7.  On 1 April 1981, 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 further declined to submit a statement or explanation in his own behalf.

8.  The appropriate authority (a major general) approved his request and directed that he be discharged under other than honorable conditions.

9.  Accordingly, he was discharged under other than honorable conditions, on 19 May 1981, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 4 months and 25 days of active service during his current enlistment and had approximately 462 days of lost time due to being AWOL.  

10.  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.

11.  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.

12.  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 courtsmartial was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  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 records.  In doing so he admitted guilt to the charges against him.  

4.  The applicant's contention that his discharge should be upgraded has been noted and found to lack merit.  He had far more bad time than he had good time during his service and given the lack of mitigating circumstances, there appears to be no basis for an upgrade of his discharge.



5.  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)                                         AR20090011691



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ABCMR Record of Proceedings (cont)                                         AR20090011691



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