IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20090020255 


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 1984 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states during his initial assignment he was a good Soldier.  He graduated with high praise from the Noncommissioned Officers’ Academy in Germany and he returned to Fort Benning, Georgia with only 7 months left on his enlistment contract.  The applicant states he really wanted to extend his enlistment for 1 additional year in order to be promoted but ultimately he was talked into reenlisting with a promise that he would remain at Fort Benning for the duration of his 3 year reenlistment contract.

3.  The applicant states 1 year into his reenlistment contract he came down on orders for assignment back to Germany and that was when all the trouble began.  He didn’t want to go back to Germany and leave his family.  He went to his chain of command and the chaplain and explained that he was promised he could stay at Fort Benning for the duration of his enlistment, but each of them gave several excuses why he could not stay.  He states he became frustrated and made “one of the biggest mistakes” of his life.  He “made a very, very, bad decision” which he regrets to this day.

4.  The applicant states since his discharge he has been a good citizen.  He has been married for 25 years and has 2 children.  He wants his discharge upgraded so he can finally put the past behind him.


5.  The applicant provides the following documents, some of which are also included in his available Official Military Personnel File (OMPF):

* October 1978 Noncommissioned Officers’ Academy Completion Certificate
* Enlisted Evaluation Report for the period ending in February 1979
* March 1979 Certificate of Achievement
* 10 January 1980 Honorable Discharge Certificate
* Undated Disposition Form providing instructions to individuals on excess leave being processed for separation
* Undated recommendation for issuance of a discharge under other than honorable conditions
* 1985 letter from the Department of Veterans Affairs indicating the applicant’s service between 3 February 1976 and 2 February 1980 may qualify him for veterans benefits although his service subsequent to that period did not

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.  Records available to the Board indicate the applicant enlisted for a period of 
4 years and entered active duty as a Regular Army Soldier on 3 February 1976.  He successfully completed training and in August 1976 he was assigned to a maintenance company in Germany.

3.  Prior to departing Germany in March 1979 enroute to Fort Benning, the applicant had been promoted to specialist/E4.  He had also been awarded an Army Good Conduct Medal, received two letters of achievement, a certificate of achievement, and successfully completed the Noncommissioned Officers’ Academy.  He received an evaluation report for the period November 1978 through February 1979 which indicated he was a superior Soldier and demonstrated the desire and ability to be an outstanding Soldier.
4.  On 11 January 1980 the applicant executed a 3 year reenlistment contract acknowledging the reenlistment option afforded him and that he understood he was reenlisting under Table 4-5 (CONUS Station of Choice) reenlistment option for assignment to Fort Benning.  He also acknowledged he read and understood the option table for which he was reenlisting.

5.  Army Regulation 601-280 (Army Reenlistment Program), in effect at the time, indicated Table 4-5 provided for the CONUS Station of Choice Reenlistment Option and noted this option guaranteed assignment for at least 12 months at the CONUS Station of Choice.

6.  The applicant was promoted to sergeant/E5 effective 15 January 1980 with a date of rank in December 1979.

7.  In September 1980, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for being absent from his place of duty on three separate occasions.

8.  In January 1981, the applicant was convicted by a special court-martial of being absent without leave (AWOL) between 3 and 13 November 1980.  His punishment included reduction to pay grade E-3.

9.  On 23 February 1981, the applicant departed AWOL and he returned to military control on 25 February 1981.  On 6 March 1981, the applicant departed AWOL and he surrendered to military control on 10 March 1981.  He departed AWOL once again on 16 March 1981 and he was apprehended by civilian authorities and returned to military control on 18 January 1984.  

10.  Documents associated with the applicant’s administrative separation processing were not in available record.  However, on 10 April 1984 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial.

11.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) notes he had more than 1000 days of lost time and 5 years,             3 months, and 20 days of creditable active Federal service.  His records also indicate he was placed in an excess leave status on 3 February 1984 and was not available to sign his DD Form 214 when it was issued on 10 April 1984.




12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  At that time, an under other than honorable conditions discharge was normally considered appropriate. 

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

14.  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.

15.  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.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant’s argument his “mistake” resulting from his desire not to return to Germany after being promised he would remain at Fort Benning for the duration of his reenlistment contract is not support by any evidence of record.  The available evidence does confirm the applicant’s reenlistment option included assignment to Fort Benning but he was only entitled to 1 year of stabilization as a result of that reenlistment option.  The evidence indicates that within 9 months of his reenlistment, the applicant began to be absent from his duty station and subsequently commenced a series of AWOL periods which resulted in his conviction by a special court-martial and his subsequent separation in lieu of court-martial.

3.  The applicant's commendable performance of duty prior to his reenlistment is evidence the applicant was capable serving honorably but it is not sufficiently mitigating to overcome his more than 1000 days of lost time leading up to his under other than honorable conditions discharge.

4.  Although the applicant’s separation action is not available, the applicant would have voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  In the absence of evidence to the contrary regularity is presumed and the applicant has provided no evidence indicating his administrative separation was not accomplished in compliance with applicable regulatory guidance or that there were procedural errors that jeopardized his rights.

5.  The applicant’s post-service accomplishments, while noteworthy, are not sufficiently mitigating to warrant the relief requested.

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)                                         AR20090020255



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ABCMR Record of Proceedings (cont)                                         AR20090020255



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