IN THE CASE OF:	

		BOARD DATE:	  30 March 2010

		DOCKET NUMBER:  AR20090014877 


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. 

2.  The applicant states that he spent ten years in the military with no other disciplinary actions and he would like to reenter the military and finish his career.  He contends that he has had time to correct and understand his wrongs.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 enlisted in the Regular Army on 8 July 1988 and was honorably discharged on 1 December 1991.  He enlisted in the Army National Guard on 
2 December 1991 and was honorably discharged on 25 February 1993.  He enlisted in the Regular Army on 3 December 1993 and remained on active duty through continuous reenlistments.  He served as an infantryman and was promoted to sergeant on 1 July 1997.

3.  Special court-martial charges were preferred against the applicant for one specification of desertion, two specifications of being absent without leave (AWOL), and one specification of wrongful solicitation.

4.  Records show the applicant was AWOL from 3 May 1998 to 29 May 1998.
 
5.  On 23 July 1998, the applicant consulted with counsel and requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  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 Department of Veterans Affairs, 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 also 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 27 July 1998, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

7.  The special court-martial charges were dismissed on 3 August 1998.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 3 August 1998 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 8 years and 25 days of active service with 27 days of lost time.

9.  On 25 June 1999, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

10.  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.

11.  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.

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 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; however, he elected not to do so.

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

3.  The applicant's record of service during his last enlistment included 27 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge 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)                                         AR20090014877





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ABCMR Record of Proceedings (cont)                                         AR20090014877



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