IN THE CASE OF:	

		BOARD DATE:	  02 March 2010

		DOCKET NUMBER:  AR20090015925 


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 be upgraded to an honorable discharge.

2.  The applicant states he was told he had an honorable discharge for the time he was in.  He also notes that he did not sign his DD Form 214 (Certificate of Release or Discharge from Active Duty).

3.  The applicant provides no additional 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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 20 February 1980.  In March 1981, following completion of training, the applicant was assigned to an Air Defense Artillery Battery at Fort Bliss, Texas.

3.  In May 1981, the applicant commenced a series of periods of being absent without leave (AWOL) totaling more than 50 days.

4.  After returning from a period of AWOL ending on 22 July 1981 court-martial charges were preferred against the applicant.  On 27 July 1981, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (in lieu of trial by court-martial).  In doing so, he acknowledged he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits, and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He elected not to submit a statement in his own behalf.

5.  On 10 August 1981, the applicant again departed AWOL.

6.  On 10 August 1981, the same day the applicant departed AWOL, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued. 

7.  The applicant was discharged in absentia on 21 August 1981, under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He was credited with completing 1 year, 3 months, and 24 days of active Federal service.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of this regulation provided 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 that time, an under other than honorable conditions discharge was normally considered appropriate.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

10.  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.

11.  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.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant’s argument that he was told he had an honorable discharge is not supported by any evidence in the available records nor has he provided any such evidence.  The fact that he did not sign his DD Form 214 does not serve as a basis to upgrade the character of his service.  It is merely evidence that he was not available to the sign the document at the time of discharge because he was in an AWOL status.  He was, therefore, discharged in absentia.

3.  The applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and no indication of procedural errors that would jeopardize his rights.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.




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)                                         AR20090015925



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ABCMR Record of Proceedings (cont)                                         AR20090015925



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