IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090015039 


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 a general discharge, under honorable conditions.

2.  The applicant states, in effect, that he was young and assigned to Germany when he made the mistake leaving his unit in an absent without leave (AWOL) status.  He states that he received a letter notifying him that his mother was ill.  He informed his chain of command and he was able to travel back and see his mother; however, he found the family living in an unhealthy/unsafe environment.  He then tried to contact his chain of command to request an extension of his leave but no one returned his calls.  He stayed with his mother until his brother got out of jail.  Ultimately, he surrendered to local civil authorities.  He regrets his actions and he would now like to reenter the military.

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 5 August 1969.  He enlisted in the Regular Army on 21 April 1988 at 18 years and 8 months of age.  He held military occupational specialty 19D (Cavalry Scout).  The highest rank he attained during his military service was private/E-2. 

3.  His records also show he served in Germany from 18 August 1988 to 1 May 1989.  His awards include the Army Service Ribbon, Marksman Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar.

4.  On 1 April 1989, he departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 8 May 1989.  He surrendered to civil authorities at Lake Charles, LA on 28 November 1989.

5.  On 1 December 1989, the command preferred court-martial charges against him for one specification of being AWOL from on or about 1 April 1989 to 
28 November 1989.

6.  On 1 December 1989, he consulted with legal counsel, who advised him of the basis for the contemplated trial by court-martial and that the offense was 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 a discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, he indicated he understood that by requesting a 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further elected not to submit a statement on his own behalf.

8.  On 20 December 1989, his immediate commander recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge.

9.  On 27 December 1989, the separation authority approved the applicant's request for discharge in accordance with chapter 10, Army Regulation 635-200, for the good of the service, and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.  On 30 January 1990, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year, 1 month, and 13 days of creditable active military service and he had 241 days of lost time.

10.  On 20 February 1998, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

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.  It 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.

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 contends his discharge should be upgraded.   

2.  The available evidence shows he was age 18 at the time of his enlistment and age 19 at the time he committed the AWOL offense that led to his voluntary discharge.  However, there is no evidence that he was any less mature than other Soldiers who honorably completed their military service obligation without going AWOL.

3.  The applicant's records show he was charged with the commission of an offense 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.  He 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  

5.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to 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)                                         AR20090015039



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ABCMR Record of Proceedings (cont)                                         AR20090015039



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