IN THE CASE OF:	

		BOARD DATE:	  13 April 2010

		DOCKET NUMBER:  AR20090015092 


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 an honorable discharge. 

2.  The applicant states his actions were due to not knowing better and being young.

3.  The applicant provides a Federal Bureau of Investigation printout, an academic transcript, and his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 Regular Army on 23 August 1985 at 19 years and 8 months of age.  He was awarded the military occupational specialty of infantryman.  The highest rank/grade he held during his tenure of service was private first class/pay grade E-3.

3.  The applicant's records do not show any significant acts of achievement or valor during his military service.

4.  On 20 March 1989, the applicant was charged with being absent without authority (AWOL) from 22 January 1987 to on or about 6 March 1989.

5.  On 21 March 1989, 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).  He acknowledged that he was making the request of his own free will.  He further acknowledged he understood the elements of the offense(s) charged and was guilty of the charge(s) against him or of a lesser included offense that was also authorized the imposition of a bad conduct or dishonorable discharge.  He stated that under no circumstances did he desire further rehabilitation; he had no desire to perform further military service.  He acknowledged that he had consulted with counsel who fully advised him of the nature of his rights under the Uniform Code of Military Justice (UCMJ).  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable conditions.  He acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 3 April 1989, the separation authority approved the applicant's request for discharge, for the good of the service - in lieu of court-martial.  He directed the applicant be issued a discharge under other than honorable conditions and be reduced to the lowest enlisted grade unless already serving in that grade.

7.  On 4 May 1989, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10.  The DD Form 214 issued to the applicant shows he completed a total of 1 year, 5 months, and 3 days of active military service.  Item 29 (Dates of Time Lost during This Period) contains the entries "861118 – 870112" and "870122 - 890305."  This lost time equals 2 years, 
5 months, and 8 days.

8.  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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, a discharge under other than honorable conditions was normally considered appropriate.

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

10.  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.

11.  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 discharge with characterization of service 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 records show he was charged with the commission of a serious offense.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant admitted guilt and requested discharge in lieu of court-martial.

2.  The applicant's records show he had more than 2 years of lost time.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.


3.  Records show the applicant was between 20 and 21 years of age at the time of his offenses.  There is no evidence indicating the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Furthermore, he demonstrated the capacity for honorable service by completion of basic training and more than a year of service without an offense.

4.  The applicant's character of service is based on the offense for which he requested discharge.  He has not provided any evidence to mitigate the actions he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  The applicant's good post-service conduct was carefully considered.  However, it was not sufficiently mitigating or meritorious to warrant upgrading a properly issued discharge.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090015092



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ABCMR Record of Proceedings (cont)                                         AR20090015092



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