BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090012729 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant did not make a statement.

3.  The applicant did not provide any additional documentary evidence 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 record shows he enlisted in the Regular Army (RA) for a period of 3 years on 20 May 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewmember).  He also executed a 9-month extension in the RA and attained the rank/grade of specialist four/E-4.

3.  The applicant's record also shows he served in Germany from on or about 17 February 1982 to on or about 29 June 1982 and that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.

4.  The applicant's records reveal a history of several instances of absence without leave (AWOL), including the periods from on or about 10 September 1980 through on or about 11 September 1980 and on or about 25 September 1980 through on or about 30 September 1980.

5.  On 30 June 1982, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 29 July 1982.  He ultimately surrendered to military authorities at Fort Benning, GA, on 20 August 1982 and was transferred to Fort Bragg, NC.

6.  On 23 August 1982, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 30 June 1982 through on or about 20 August 1982.

7.  On 25 August 1982, the applicant consulted with legal counsel and 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 voluntarily 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 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."
9.  On 1 September 1982, the applicant's immediate commander stated that he personally interviewed the applicant and that during the interview, the applicant stated that he was aware of the consequences of a discharge under other than honorable conditions and desired elimination from the Army under the provisions of chapter 10 of Army Regulation 635-200.  He also stated that he departed in an AWOL status due to family problems since his family had no place to stay.  He had discussed that with his chain of command to no avail.  The immediate commander also remarked that in view of the applicant's attitude toward the military and his lack of rehabilitative potential, the best interests of the Army could be served if the applicant's request for a discharge were approved.  He further recommended approval of the discharge with the issuance of an under other than honorable conditions discharge.

10.  On 16 September 1982, the applicant's senior commander also recommended approval with the issuance of an under other than honorable conditions discharge.

11.  During the period from September 1982 to September 1983, the applicant's DA Form 201 (Military Personnel Records Jacket) was requested from his previous overseas command.  The DA Form 201 did not arrive until 6 September 1983.

12.  Meanwhile, on 19 August 1983, the applicant again departed his unit in an AWOL status and returned on 6 September 1983.

13.  On 13 October 1983, 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 and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 28 October 1983.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court martial with a characterization of service of under other than honorable conditions.  This form confirms he completed 3 years, 2 months, and 23 days of creditable active service and had 78 days of lost time.

14.  On 25 October 1983, a legal noncommissioned officer certified by memorandum that the applicant had submitted his chapter 10 discharge packet on 25 August 1982, but his DA Form 201 -- which was necessary for forwarding to the convening authority for approval -- did not arrive until 6 September 1983.


15.  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.

16.  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.

17.  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.

18.  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 contends that his discharge should be upgraded.

2.  The applicant's record shows he was charged with the commission of an offense 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.

3.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant did not submit sufficient evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a 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)                                         AR20090012729



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ABCMR Record of Proceedings (cont)                                         AR20090012729



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