BOARD DATE:	 February 18, 2010 

		DOCKET NUMBER:  AR20090016473 


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, his discharge should be upgraded. 

3.  The applicant did not provide any additional documentary 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.  The applicant's records show he enlisted in the Regular Army for a period of 4 years on 10 November 1981.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63H (Track Vehicle Repairer).  The highest rank/grade he attained during his military service was specialist four/E-4.  

3.  The applicant's record also shows he served in Germany from on or about 13 April 1982 to 16 April 1984.  His records also show he was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 19 June 1984, the applicant departed his Fort Ord, CA, unit in an absent without leave (AWOL) status and was subsequently dropped from Army rolls on 19 July 1984.  He surrendered to military authorities at Fort Lewis, WA, on 13 August 1984.  

5.  The applicant's complete separation packet is not available for review with this case.  However, based on various documents in his service record, including the Case Report and Directive of the Army Council of Review Boards (Army Discharge Review Board (ADRB)), dated 15 July 1988, the following is noted:

	a.  On 22 August 1984, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 19 July 1984 through 13 August 1984; 

	b.  On 22 August 1984, 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);

	c.  In his request for discharge, the applicant would have indicated 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 honorable conditions.  He also would have acknowledged that he was making this request of his own free will and that he had not been subjected to any coercion whatsoever by any person.  Further, he would have 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 laws.  His request would have also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service"; 

	d.  On 30 and 31 August and 6 September 1984 the applicant's immediate, intermediate, and senior commanders recommended approval of the applicant's request with an under other than honorable conditions discharge.

	e.  On 8 September 1984, the discharge packet was reviewed by an official at the Staff Judge Advocate who concurred with the recommendation; and 

	f.  On 25 September 1984, 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 and directed that he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.  

6.  The applicant was discharged on 25 September 1984.  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 characterization of service of under other than honorable conditions.  This form further shows he completed 2 years, 8 months, and 20 days of creditable active service and he had 56 days of lost time.  

7.  On 15 July 1988, the ADRB denied the applicant's petition for an upgrade of his discharge. 

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 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.

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 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 should be upgraded.

2.  The applicant’s record is void of the full facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 as well a complete copy of the ADRB's Case Report and Directive, dated 15 July 1988, that show he was discharged on 25 September 1984 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Therefore, it is presumed that the applicant’s discharge accurately reflects his overall record of service.   

4.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090016473



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ABCMR Record of Proceedings (cont)                                         AR20090016473



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