IN THE CASE OF:	  

		BOARD DATE:	  20 May 2010

		DOCKET NUMBER:  AR20090020009 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he missed his flight to Germany and his recruiter told him not to worry and that he would get him a hardship discharge; however, he was charged with being absent without leave (AWOL) and booted out of the Army with a discharge under other than honorable conditions.  He goes on to state that when he enlisted he planned to make the Army a career; however, he trusted the word of the recruiter.  He also states that he has not been in any trouble since he was discharged.

3.  The applicant provides a copy of a letter of debarment, a copy of a Travelope, and a copy of his flight itinerary.

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 enlisted in the Regular Army in Syracuse, New York on 3 March 1983, for a period of 3 years and training as a motor transport operator. 

3.  He successfully completed his training and was transferred to Fort Stewart, Georgia.  He was advanced to the pay grade of E-3 on 1 February 1984.

4.  The applicant received permanent change of station (PCS) orders transferring him to the 21st Replacement Battalion in Germany with a report date of 
16 August 1984.  He failed to report for his port call and was reported as being AWOL.  He remained absent in a desertion status until he was apprehended by civil authorities in New York on 5 March 1986.  He was returned to military control at Fort Hamilton and he was subsequently transferred to Fort Dix, NJ where charges were preferred against him for the AWOL offense.  At the time of his return to military control he indicated that he went AWOL because he did not want to be in the Army anymore.  When the applicant was asked what actions he had taken to solve his problems before going AWOL, he responded “NONE.”

5.  On 7 March 1986, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He acknowledged he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement in his own behalf.

6.  The appropriate authority approved his request on 10 April 1986 and directed that he be discharged under other than honorable conditions.

7.  Accordingly, on 20 May 1986, he 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 served 1 year, 7 months, and 29 days of total active service and he had 566 days of lost time due to being AWOL.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions was then and still is normally considered appropriate.

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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s overall record of service, the lack of mitigating circumstances at the time, and the serious nature of the charges against him at the time simply does not rise to the level of a discharge under honorable conditions.

4.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service to avoid a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

5.  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)                                         AR20090020009



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ABCMR Record of Proceedings (cont)                                         AR20090020009



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