IN THE CASE OF:	  

		BOARD DATE:	 20 January 2010 

		DOCKET NUMBER:  AR20090012985 


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 he be issued a DD Form 214 (Report of Separation from Active Duty) that shows his service is characterized as general under honorable conditions. 

2.  The applicant states that he believes his under other than honorable conditions discharge was upgraded to a general discharge.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) 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 29 July 1975.  He was awarded the military occupational specialty of unit/organization supply man.  The highest grade he held was pay grade E-1.  The applicant's records do not show any significant acts of achievement or valor during his military service.

3.  On 13 January 1977, charges were preferred against the applicant for being absent without leave (AWOL) during the period on or about 29 February through 27 December 1976.

4.  On 17 January 1977, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (for the good of the service in lieu of court-martial).  He acknowledged that he was making the request of his own free will.  He further acknowledged he understood that by requesting a discharge, he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he had consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice (UCMJ).  He further acknowledged he understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and the possible effects of such a discharge.  He acknowledged he understood 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 law.  The applicant indicated in a statement provided in his own behalf that he did not wish to continue to serve in the military, that he did not believe the military was right for him, and that it would be a waste of money and time for him to remain in the military.

5.  On 20 January 1977, the applicant's commander recommended approval of the applicant's request for discharge for the good of the service. 

6.  On 28 January 1977, the separation authority approved the applicant's request for discharge and directed that he be given a discharge under other than honorable conditions.

7.  On 8 February 1977, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  The DD Form 214 the applicant was issued shows he completed a total of 8 months and 11 days of active military service and he had 303 days of lost time due to being AWOL.

8.  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.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation in effect at the time provided that a member who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, may at any time after the charges had been preferred submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, a discharge under other than honorable conditions was normally considered appropriate.

10.  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.

11.  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.  While the applicant contends that his discharge under other than honorable conditions was upgraded to a general discharge, there is no evidence available to support that his discharge was ever upgraded or was considered for an upgrade.

2.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  He was AWOL 303 days.  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.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  
   
4.  Based on the applicant's record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant 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)                                         AR20090012985



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ABCMR Record of Proceedings (cont)                                         AR20090012985



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