BOARD DATE:	  3 June 2010

		DOCKET NUMBER:  AR20090020442 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states he was told he would not receive a dishonorable discharge at the time the action took place, but that he would receive a general under honorable conditions discharge.  Otherwise, he would never have agreed to the separation proceedings.  He went to a Department of Veterans Affairs (VA) hospital to receive medical care and while he was there an admitting clerk told him that his discharge was a dishonorable discharge.  He states that when he got home he looked at his DD Form 214 (Certificate of Release or Discharge from Active Duty) and did not see anywhere on the form that it was dishonorable.

3.  The applicant provides no additional documentary evidence in support of this 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 records show that he enlisted in the Regular Army on 27 January 1975.  He was awarded the military occupational specialty of light weapons infantryman.  The highest rank/grade he held was staff sergeant/E-6.

3.  The applicant served continuously through reenlistments until his separation.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 8 July 1975 and 22 January 1979 for being absent without leave (AWOL).

5.  The applicant's discharge packet is not contained in his records.  However, his records contain a memorandum which shows he knowingly, willingly, and voluntarily admitted that he was absent without leave from 21 January 1987 to 28 June 1988.  In the memorandum the applicant further states that his military defense counsel explained to him to his complete understanding and satisfaction, all the legal and social ramifications of an under other than honorable conditions discharge and what it would mean in the future.

6.  On 28 July 1988, the applicant was discharged 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 and issued an under other than honorable conditions discharge.  The DD Form 214 issued to the applicant shows he completed a total of 13 years, 6 months, and 2 days of active military service.  It does not show his lost time due to being AWOL.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  The Soldier's written request would include an acknowledgement that the Soldier understands the elements of the offense(s) charged and is guilty of the charge(s) or of a lesser included offense(s) therein contained which also authorize(s) the imposition of a punitive discharge.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements 


of the offense(s) for which charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be furnished an individual who was discharged for the good of the service.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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 records show he accepted NJP on two occasions for being AWOL.  He was also AWOL for a third time for a period in excess of 1 year.  These serious offenses warranted an under other than honorable conditions discharge.

2.  The applicant would have admitted he was guilty of the charges against him and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.

3.  In the absence of evidence to the contrary, 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.

4.  Based on the applicant's history of extended periods of AWOL, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His serious offenses render his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20090020442



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ABCMR Record of Proceedings (cont)                                         AR20090020442



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