BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090013626 


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 fully honorable.

2.  The applicant states that there is no error but he would like the record corrected because he has paid the price to society.  He was young when he left in an absent without leave (AWOL) status and had to deal with the death of his mother and the ending of his marriage.  He is remorseful for his actions and takes responsibility.  He is now more responsible and would like to obtain a Federal job.

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 records show he was born on 20 December 1959 and enlisted in the Regular Army (RA) for a period of 3 years at nearly 20 years of age on 4 December 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty 76P (Materiel Control and Accounting Specialist).  He also executed a 3-year reenlistment in the RA on 5 October 1982.  The highest rank/grade he attained during his military service was specialist four/E-4.

3.  The applicant's record also shows he served in Germany from on or about 5 August 1981 to on or about 30 November 1982.  His awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Army Good Conduct Medal.

4.  On 2 September 1986, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 2 October 1986.  He was apprehended by civilian authorities in Winchester, KY, and returned to military control on 21 March 1987.

5.  On 25 March 1987, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 2 September 1986 through on or about 21 March 1987.

6.  On 26 March 1987, 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 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).

7.  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."  He also elected not to submit a statement on his own behalf.

8.  On 31 March 1987, the applicant's immediate commander recommended approval of the applicant's discharge with an under other than honorable conditions character of service.  The immediate commander remarked that the applicant's conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.

9.  On 31 March 1987, the applicant's intermediate commander also recommended approval of the applicant's discharge with an under other than honorable conditions character of service.

10.  On 3 April 1987, 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 character of service and be reduced to the lowest enlisted grade.  On 4 May 1987, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further shows he completed 6 years, 2 months, and 12 days of creditable active service and had 1 year, 2 months, and 19 days of lost time.

11.  On 26 June 1997, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

12.  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.

13.  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.

14.  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 should be upgraded.

2.  The evidence of records shows that the applicant was nearly 20 years of age at the time of his enlistment and over 24 years of age at the time he went AWOL. 
There is no evidence that the applicant was any less mature than other Soldiers who successfully completed their periods of enlistment without being AWOL.

3.  The applicant's record shows he was charged with the commission of offenses 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.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20090013626



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ABCMR Record of Proceedings (cont)                                         AR20090013626



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