IN THE CASE OF:	

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090013548 


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 since his discharge he has been an upstanding citizen in his community, that he has raised two children who have been outstanding additions to the community, that he has been employed by the same company since 1995, and that he has not been in any trouble with the law.  He contends that at the time of his discharge he had a serious injury to his back from a motorcycle accident, that he was very young, and that he did not have the goals and experience he does today.  He indicates that he was absent without leave (AWOL) because he was beaten, humiliated, and exploited by fellow Soldiers and his girlfriend was beaten by her father.  He regrets his actions and has learned his lesson with great loss and disrespect to his family and country.

3.  The applicant provides no documentary evidence in support of his 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 was born on 12 October 1962.  He enlisted in the Regular Army on 15 January 1980 for a period of 3 years.  He successfully completed one-station unit training in military occupational specialty 16R (air defense artillery short range gunnery crewman) and basic airborne training.

3.  On 11 August 1980, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of a reduction to pay grade E-1, a forfeiture of pay (suspended), and 14 days of correctional custody (suspended).  On 18 November 1980, the suspended portions of the sentence were vacated.

4.  The applicant was AWOL on 21 November 1980 and returned to military control on 29 January 1981.  He was AWOL again on 5 February 1981 and returned to military control on 30 March 1981.  On 10 June 1981, charges were preferred against the applicant for the AWOL periods.

5.  On 10 July 1981, the applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

6.  On 2 October 1981, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 29 July 1982 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served a total of 2 years, 2 months, and 13 days of creditable active service with 122 days of lost time due to AWOL.

8.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board 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 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.

10.  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.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted, he successfully completed one-station unit training and basic airborne training.

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  Since the applicant's record of service included one nonjudicial punishment and 122 days of lost time, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns, but he elected not to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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.



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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)                                         AR20090013548



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ABCMR Record of Proceedings (cont)                                         AR20090013548



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