IN THE CASE OF:	

		BOARD DATE:	  11 March 2010

		DOCKET NUMBER:  AR20090016222


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 his discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states his girlfriend moved away from North Carolina and he made the foolish decision to follow her.  He was young and in love.  He did not consider the repercussions of his decision.  He had a previous enlistment that was outstanding, having received a letter of commendation and two highly-rated efficiency reports.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 10 July 1984 in support of his application.

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 personnel records show he initially enlisted in the Regular Army on 26 October 1976, 1 day prior to his 20th birthday.  He immediately reenlisted on 27 April 1979 for a period of 6 years.

3.  On 2 July 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failure to go at the prescribed time to his appointed place of duty.

4.  On 30 June 1982, the applicant accepted NJP under Article 15, UCMJ, for destruction of military property of the United States.

5.  On 1 November 1983, the applicant was promoted to sergeant/pay grade E-5. 
On 20 January 1984, he was assigned to the 27th Engineer Battalion at Fort Bragg, NC, in military occupational specialty 12B (Combat Engineer).

6.  On 30 May 1984, court-martial charges were preferred against the applicant for being absent without leave (AWOL) during the period from on or about 17 April 1984 to on or about 29 May 1984.

7.  On 30 May 1984, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the elements of the offense he was charged with and he was

	a.  making the request of his own free will,

	b.  guilty of the offense with which he was charged,

	c.  afforded the opportunity to speak with counsel prior to making this request, and

	d.  advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate.

8.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and he 

a. would be deprived of many or all Army benefits and

b. may be ineligible for many or all Veterans Administration benefits.

9.  On 5 June 1984, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the applicant be reduced to private/pay grade E-1 and be furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 10 July 1984, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service.  He had completed 5 years, 1 month, and 2 days of active service that was characterized as under other than honorable conditions and had 41 days of lost time on this enlistment.

11.  On 5 October 1984, the applicant enlisted in the Massachusetts Army National Guard was discharged on 22 March 1985 for unsatisfactory participation.

12.  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.

13.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation states 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.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200 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.  

15.  Army Regulation 635-200 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 contends he was young at the time and didn't realize the repercussions of his actions.  However, he was 1 day short of 20 years of age at the time of his initial enlistment.  At the time he went AWOL he was 25 years of age, had almost 7 1/2 years in the Army, and had been promoted to sergeant.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

3.  The applicant contends he had a previous enlistment that was outstanding.  There is no record of disciplinary action during his first enlistment and he was issued an honorable discharge for that period of service.  However, this does not excuse his actions after his reenlistment.

4.  In promoting the applicant to sergeant, the Army reposed special trust and confidence in his patriotism, valor, fidelity, and professional excellence.  As a sergeant, the applicant was in a position of trust and responsibility and he was responsible for the welfare of those assigned under him.  As such, he should have been aware of avenues, other than being AWOL, he should have pursued in resolving any issues he had with the Army.  By being AWOL the applicant violated this special trust and confidence.

5.  The applicant voluntarily requested discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge.  His request was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

7.  The applicant's actions did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's actions were clearly not satisfactory for a sergeant with over 7 years of experience in the Army.  Therefore, there is no basis to upgrade his discharge to an honorable discharge or to a discharge under honorable conditions.

8.  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 that 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)                                         AR20090016591



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016222



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1