IN THE CASE OF:	  

		BOARD DATE:	  28 January 2010

		DOCKET NUMBER:  AR20090015688 


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.

2.  The applicant states, in effect, that he was the victim of peer pressure at a young age.  His commander went to high school with his uncle and the commander and his uncle constantly fought during high school.  He adds that he was sent to the field every time a field medic was needed and he was not allowed to spend any time at the company clinic.  He asked his commanding officer if he could be transferred or released; however, his commander sent him for a psychiatric evaluation instead because he was worried about leaving his mother with his alcoholic father.  He broke down at the interview and felt that this was the lowest point in his military career.  His peers constantly harassed him about it and actually talked him into going absent without leave (AWOL).  His peers gave him details on how long to stay away so he could be released from the Army.  He did so and turned himself in at Fort Sill, OK.  However, he has led an honorable and law-abiding life since his discharge from the Army.

3.  The applicant provides two character reference letters 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 28 June 1963 and enlisted in the Regular Army (RA) at 19 years of age for a period of 3 years on 16 March 1982.  He completed basic combat and advanced individual training and was awarded military occupational specialty 91B (Medical Specialist).  The highest grade the applicant attained was E-1.

3.  The applicant’s records also show he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the First Class Gunner Qualification Badge with Grenade Bar. 

4.  On 3December 1982, the applicant departed his unit at Fort Lewis, WA, in an AWOL status and he surrendered to military authorities at Fort Sill, OK, on
27 January 1983.  On 31 January 1983, court-martial charges were preferred against the applicant for this period of AWOL.

5.  On 2 February 1983, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense 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 discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge the applicant indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also acknowledged that he understood that by requesting 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 than 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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also elected not to submit a statement in his own behalf.

7.  On 11 February 1983, the applicant's immediate commander cited that the applicant was unable to adjust to military life and recommended approval with the issuance of an under other than honorable conditions discharge.

8.  On 24 February 1983, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200, directed that he receive an under other than honorable conditions discharge, and that he be reduced to the lowest enlisted grade.  On 8 March 1983, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  He had completed 9 months and 28 days of creditable active military service and he had 56 days of lost time.

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

10.  The applicant submitted two character reference letters as follows:

	a.  In an undated letter, the applicant's sister states the applicant served 
2 years and had to ask to be released for hardship purposes because he was needed at home to help raise his two younger brothers.  She also states that the applicant is now in need of medical assistance, especially after his heart attack.

	b.  In an undated letter, the applicant's mother states that the applicant is at a crossroad in his life and needs medical benefits.  He was always a good and honest man and is doing his best to take care of his family.  He joined the Army at a young age and asked to be discharged because he was needed at home.  

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's contends that his under other than honorable conditions discharge should be upgraded to a general discharge.

2.  The applicant’s record shows 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.  The applicant indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  Only then did he voluntarily, willingly, and in writing request to be discharged from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  The evidence of record shows the applicant was 19 years of age at the time he enlisted in the RA and he was over 20 years of age at the time he went AWOL.  However, 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.  Furthermore, there is no evidence in the applicant's records, and the applicant did not provide any substantiating evidence that shows he left his unit in an AWOL status as a result of his age.

4.  There is no evidence that the applicant addressed any family issues with his chain of command or that he requested support through any other channels.  Additionally, there is no evidence that his commander treated him any differently than other Soldiers or that his peers caused him to go AWOL. 

5.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did 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.

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)                                         AR20090015688



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ABCMR Record of Proceedings (cont)                                         AR20090015688



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