BOARD DATE:	  February 17, 2010

		DOCKET NUMBER:  AR20090014209 


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 that his character of discharge is too harsh in light of his overall service record and good post service citizenship.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty); a DA Form 2-2 (Insert Sheet to DA Form 2-1, Record of Court-Martial Conviction); his DA Form 20 (Enlisted Qualification Record); two pages of his enlistment contract; four character reference letters; and six photographs in support of his application. 

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, as counsel for the applicant, states that the issues raised on the applicant's DD Form 149 (application) amply advance his contentions and substantially reflect the probative facts needed for equitable review.  

2.  Counsel provides a statement, dated 22 December 2009.

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 12 March 1979 for a period of 
3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 13B (cannoneer).

3.  On 19 February 1980, in accordance with his plea, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 27 September 1979 to 19 January 1980.  He was sentenced to be confined at hard labor for 30 days.  On 19 February 1980, the convening authority approved the sentence.

4.  On 1 May 1980, nonjudicial punishment was imposed against the applicant for disobeying a lawful order and failure to repair.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

5.  The applicant went AWOL on 18 August 1980 and returned to military control on 3 February 1981.  On 13 February 1981, charges were preferred against the applicant for the AWOL period.

6.  On an unknown date, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, 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.

7.  On 2 April 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.
8.  Accordingly, the applicant was discharged under other than honorable conditions on 22 April 1981 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served a total of 1 year, 3 months, and 1 day of creditable active service with 319 days of lost time due to AWOL and confinement.

9.  In support of his claim, the applicant provided four character reference letters from relatives, a co-worker, and a friend.  They attest that the applicant is kind, loving, hard working, outgoing, and honest.  He was also described as a person of good character.  He also provided six photographs of an individual with lacerations on his face.

10.  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.

11.  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.

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 character reference letters submitted on behalf of the applicant fail to show that his discharge was unjust and should be upgraded.

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

3.  The applicant's contentions were carefully considered.  However, his record of service included one nonjudicial punishment, one summary court-martial conviction, and 319 days of lost time.  As a result, 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.




      _______ _   __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)                                         AR20090014209





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ABCMR Record of Proceedings (cont)                                         AR20090014209



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