IN THE CASE OF:	  

		BOARD DATE:	  2 February 2010

		DOCKET NUMBER:  AR20090016025 


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, in effect, that his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that at the time of his discharge he was waiting to receive orders for assignment to a new duty station as his unit in Germany was closing.  He states that he had to go home on emergency leave because of the death of his father and that he was told his orders would be mailed to him.  He states that he never received the orders; therefore, he went to Fort Sill, Oklahoma and processed out of the Army.

3.  The applicant provides a copy of 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.  On 4 October 1990, the applicant enlisted in the Regular Army (RA) in Little Rock, Arkansas, for 4 years, in the pay grade of E-2.  He was transferred to Germany on 12 October 1990 and he was promoted to the pay grade of E-3 on 1 February 1991.

3.  The applicant was home on leave went he went absent without leave (AWOL) on 12 January 1992 and he remained absent in desertion until he was apprehended by civil authorities on 10 July 1992 and placed in confinement in Conway, Arkansas, for drug possession.

4.  On 14 July 1992, the applicant was notified that charges were pending against him for being AWOL.  He acknowledged receipt of the notification and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

5.  The appropriate authority approved the request for discharge on 27 August 1992 and directed the issuance of a discharge under other than honorable conditions.

6.  Accordingly, on 15 September 1992, the applicant was discharged under other than honorable conditions, 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 completed 1 year, 11 months and 12 days of net active service this period and he had approximately 180 days of lost time due to being AWOL.

7.  The available records do not show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's     15-year statute of limitation.

8.  Army Regulation 635-200 (Enlisted Separations) 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.  A discharge under other than honorable conditions is normally considered appropriate.  

9.  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.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The applicant's contentions have been considered.  However, the applicant's records show that he was AWOL for approximately 180 days when he was apprehended by civil authorities and placed in confinement for drug possession.

3.  The applicant's separation processing was conducted in accordance with applicable law and regulations.

4.  The applicant has failed to show error or injustice in the type of discharge that he received and considering the nature of his offenses, it does not appear that his discharge under other than honorable conditions is too harsh.  

5.  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.

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)                                         AR20090016025



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ABCMR Record of Proceedings (cont)                                         AR20090016025



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