IN THE CASE OF:	  

		BOARD DATE:	  25 May 2010

		DOCKET NUMBER:  AR20090020235 


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.  He also requests copies of all his military records.

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 12 months of active service with no adverse action.  He was not given the opportunity to explain his actions at the time as his mother was shot six times during a home robbery.  He requested emergency leave on numerous occasions but his chain of command denied his request.  He took it upon himself to go see his mother but he ultimately turned himself in.

3.  The applicant provides a copy of a letter of recommendation, dated 27 October 1989; a copy of a second, undated letter of recommendation; and a copy of a diploma, dated 21 December 1984

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 requested a copy of his military records.  This issue is not within the purview of this Board.  Veterans may request military records by submitting a Standard Form (SF) 180 (Request Pertaining to Military Records) to the National Personnel Records Center, 9700 Page Avenue, St. Louis, MO 63132.  Veterans may also submit their requests online at the following internet site: http://www.archives.gov/veterans/evetrecs/index.html.  Therefore, this portion of the applicant's request will not be discussed further in these Proceedings.

3.  The applicant's records show he enlisted in the Regular Army on 12 April 1989 and held military occupational specialty 16S (Man Portable Air Defense (MANPAD)/Pedestal Mounted Stinger Missile Crewmember).  The highest rank/grade he attained during his military service was private first class (PFC)/
E-3.

4.  His records also show he was awarded the Army Service Ribbon, Parachutist Badge, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and First Class [Sharpshooter] Marksmanship Qualification Badge with Grenade Bar.

5.  On 18 January 1990, he departed his Fort Bragg, NC, unit in an absent without leave (AWOL) status; however, he surrendered to his unit on 19 January 1980.

6.  On 25 January 1990, he again departed his unit in an AWOL status and he was subsequently dropped from the rolls (DFR) of the Army on 24 February 1990.  He was apprehended by civil authorities in Fayetteville, NC, and returned to military control on 2 May 1990.

7.  On 4 May 1990, he was placed in pre-trial confinement and he remained in confinement until 21 May 1990.

8.  On 21 May 1990, the command preferred court-martial charges against him for one specification of being AWOL from on or about 25 January 1990 to on or about 2 May 1990.

9.  On 21 May 1990, he consulted with legal counsel, who advised him of the basis for the contemplated trial by court-martial and that the offense was 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 a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

10.  In his request for discharge, he indicated he understood that by requesting a 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 further 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He further elected not to submit a statement in his own behalf.

11.  On 23 May 1990, his immediate and intermediate commanders recommended approval of the discharge action with the issuance of an under other than honorable conditions discharge.

12.  On 4 June 1990, the separation authority approved the applicant's request for discharge in accordance with Army Regulation 635-200, chapter 10, for the good of the service, and directed that he be reduced to the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.  On 26 July 1990, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 1 year and
7 days of creditable active military service and he had 98 days of time lost.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  He submitted the following documents:

	a.  A copy of a letter of recommendation, dated 27 October 1989, wherein an officer recommended him for Officer Candidate School.

	b.  A copy of an undated letter of recommendation wherein another officer recommended him for a career as a military police officer.

	c.  A copy of a diploma, dated 21 December 19874, showing he successfully completed the Basic Peace Officer Certification Course.



15.  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.

16.  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 his discharge should be upgraded.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  Contrary to his argument that his discharge was based on one isolated incident and that he surrendered to military authorities, the available evidence shows he was AWOL on two occasions and that subsequent to his second instance, he was apprehended by civil authorities.

4.  The tragic shooting of his mother is noted; however, there were many other ways he could have addressed the issue, but he elected to go AWOL instead.  Additionally, contrary to his contention that he was not given an opportunity to explain his actions, the available evidence shows he consulted with legal counsel and he was afforded the opportunity to make a statement but he elected not to do so.

5.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  Based on his record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.

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)                                         AR20090020235



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ABCMR Record of Proceedings (cont)                                         AR20090020235



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