IN THE CASE OF:	  

		BOARD DATE:	  23 March 2010

		DOCKET NUMBER:  AR20090014591 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states that he would like his discharge considered for an upgrade due to a medical condition (diabetes).  He also states that he served honorably for his first enlistment and had 6 months and 24 days of overseas duty in combat.

3.  The applicant provides no additional documentation 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's military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 14 September 1988.  He was discharged from the USAR DEP on 27 September 1988 and he enlisted in the Regular Army (RA) in pay grade E-1 on 28 September 1988 for 4 years.  He completed training and he was awarded military occupational specialty 71L (Administrative Specialist).  He was advanced to pay grade E-4 on 28 November 1990, which is the highest grade he held during his period of service.  He served in Saudi Arabia from 8 September 1990 to 31 March 1991.

3.  The applicant was reported absent without leave (AWOL) on 21 February 1989 and returned to duty on 22 February 1989.  He reenlisted in the RA on
17 March 1992 for 3 years.  He was again reported AWOL on 24 June 1992 and returned to duty on 28 June 1992 and was AWOL again on 16 July 1992 and returned to duty on 26 July 1992.

4.  On 28 July 1992, a DD Form 458 (Charge Sheet) was prepared by the Commander, 20th Replacement Detachment, 101st Support Group (Corps), Fort Campbell, Kentucky.  The applicant was charged with two specifications of AWOL from 24 to 28 June 1992 and from 16 to 26 July 1992.

5.  On 4 August 1992, after consulting with counsel, 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.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge and he did not desire further military service.  He also acknowledged that he could be discharged under other than honorable conditions and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 11 and 12 August 1992, the applicant’s unit and battalion commanders recommended approval of the applicant’s request and the issuance of a discharge under other than honorable conditions.

7.  On 14 August 1992, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a discharge under other than honorable conditions be issued and reduction to pay grade E-1.

8.  The applicant was accordingly discharged on 19 August 1992 in pay grade
E-1 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He was credited with completing 3 years, 10 months, and 4 days of net active service.  He was also credited with lost time from 21 to 22 February 1989, 24 to 28 June 1992, and 16 to 26 July 1992.

9.  There is no evidence the applicant was punished under Article 15 or courts-martial for any offenses during his period of service from 28 September 1988 to 19 August 1992.

10.  The applicant’s records contain no evidence that he was diagnosed with or treated for diabetes during his period of service and or that such a condition warranted medical disability discharge processing.

11.  There is no indication 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.

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 was separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant served on active duty from 28 September 1988 to 16 March 1992 and from 17 March 1992 to 19 August 1992.  In July 1992, he was charged with two periods of AWOL totaling 16 days.  Notwithstanding the fact that he requested to be discharged in lieu of court-martial, there is no evidence of any major indiscipline in his records that over shadow his overall service record as less than general, under honorable conditions.  While his misconduct cannot be condoned and diminished the quality of his service below that meriting a fully honorable discharge, the evidence supports a conclusion that the characterization of his service was too harsh, and as a result it is inequitable.  

2.  Therefore, it is concluded he is entitled to an upgrade of his characterization of service to general, under honorable conditions.  The reason for discharge was found to be both proper and equitable and therefore will remain unchanged.

3.  In view of the foregoing, the applicant’s records should be corrected as recommended below.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X___  ___X____  ___X ____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  Notwithstanding the staff DISCUSSION AND CONCLUSIONS above, the Board noted that the applicant twice went AWOL within 4 months of his reenlistment.  He was placed in pre-trial confinement after the second AWOL.  He was referred to a special court-martial authorized to impose a bad conduct discharge.  These factors are indicators that there were aggravating factors that merited such confinement.  The applicant was advised by counsel prior to requesting discharge in lieu of court-martial, he acknowledged that he could receive a discharge under other than honorable conditions, and his entire chain of command recommended he receive a discharge under other than honorable conditions.


2.  The Board believed it is not proper to overturn the decision(s) of the chain of command after 18 years without knowing all of the facts.  Therefore, the Board determined that the evidence presented was insufficient to warrant the requested relief.



      __________XXX______________
               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)                                         AR20090014591



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ABCMR Record of Proceedings (cont)                                         AR20090014591


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