BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090014294 


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 under other than honorable conditions discharge be upgraded to a general or an honorable discharge.

2.  The applicant states that his prior service was outstanding and he received awards for his accomplishments.  He adds that while in the Army, he graduated top in his class at the Quartermaster School so that he could receive his choice of duty stations, but he was sent to Europe rather than Texas.  He states that he made a bad mistake.  He explains that during the period before his discharge from the Army, he was going through some family problems and his wife was having complications with her pregnancy and subsequent delivery.  He maintains that he was young and somewhat of a newlywed and felt that his place was with his family.  The applicant concludes that he regrets the wrong choice he made.  

3.  The applicant provides three supporting statements.

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 that he originally enlisted in the U.S. Marine Corp (USMC) on 14 June 1983.  He served 2 years, 9 months, and 21 days and was honorably released from active duty on 4 April 1986.  The applicant's DD Form 214 from the USMC shows he was awarded the Rifle Sharpshooter Badge, Sea Service Deployment Ribbon, Meritorious Mast, and the Good Conduct Medal.

3.  The applicant’s record shows he enlisted in the Regular Army on 31 January 1989 at the age of 23. 

4.  On 9 December 1991, charges were preferred against the applicant for being absent without leave (AWOL) from 30 December 1989 to 9 December 1991.

5.  On 12 December 1991, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200.

6.  The applicant voluntarily requested a discharge, he acknowledged he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he understood he may be furnished a discharge under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all Department of Veterans Affairs (VA) benefits, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  

7.  On 29 January 1992, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an under other than honorable conditions discharge be furnished.

8.  The applicant's DD Form 214 shows that on 14 February 1992 he was discharged with a character of service of under other than honorable conditions.  The applicant had completed 1 year, 1 month, and 4 days of creditable active service and he had more than 1 year and 11 months of lost time due to being AWOL.

9.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  The three supporting statements submitted by the applicant speak highly of his character.  One author stated the applicant was dedicated to the church, his family and his job.  The Union President said that as a member of the Union Leadership Team, the applicant was involved in local community and church projects.  Additionally, one author concluded that the applicant served his country, raised a son as a single father, held the same job for twenty plus years, and he spent his time supporting his community.

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 3-7a, 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.

13.  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 argues that his discharge should be upgraded because he was young and he was going through difficult times with his wife.  The evidence shows the applicant was age 23 years, and he had completed almost 3 years in the USMC at the time of his offenses.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations and endured difficult times.  Therefore, his indiscipline is not sufficient as a basis for upgrading his discharge. 
2.  The applicant's previous honorable service in the USMC and his good citizenship since his discharge were considered.  However, it does not sufficiently mitigate his misconduct.  

3.  Evidence of record shows the applicant’s requested separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial, it was voluntary, administratively correct, and in compliance with applicable regulations.  

4.  The applicant’s record of service included over 1 year and 11 months of lost time.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  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)                                         AR20090014294



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ABCMR Record of Proceedings (cont)                                         AR20090014294



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