BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090020743 


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.

2.  The applicant states that he was young and immature at the time.  He also married young and he was not ready for responsibility.  He served well, and he was selected as the Soldier of the Year, but he made a mistake.  However, his goals have changed and he has dedicated his life to God who has taken control of his life.

3.  The applicant provides a character reference letter from his pastor.

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 was born on 5 May 1962 and he enlisted in the Regular Army for a period of 3 years at 18 years of age on 13 May 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 13B (Cannon Crewman).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's record also shows he served in Germany from August 1980 to March 1982.  He was awarded the Army Service Ribbon and the Overseas Service Ribbon.

4.  On 16 March 1983, he departed his unit in an absent without leave (AWOL) status.  He was apprehended by civilian authorities in Las Cruces, NM, and he was transferred to military authorities at Fort Bliss, TX, on 31 March 1983.

5.  On 31 March 1983, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for being AWOL from on or about 16 March 1983 to on or about 31 March 1983.  His punishment consisted of a reduction to private first class (PFC)/E-3, a forfeiture of $164.00 pay, and 14 days of extra duty.

6.  On 6 April 1983, he again departed his unit in an AWOL status and he was subsequently dropped from the rolls (DFR) of the Army on 7 April 1983.  He was apprehended by civil authorities and he was confined in Indianapolis, IN, on
19 October 1984 for the civilian charges of resisting arrest and theft.  He was returned to military control on 17 December 1984.

7.  On 20 December 1984, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 7 April 1983 through on or about 17 December 1984.

8.  On 21 December 1984, he consulted with legal counsel and he 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 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 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.

9.  In his request for discharge, the applicant 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 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.  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 also elected not to submit a statement in his own behalf.

10.  On 27 December 1984, his immediate commander recommended approval of the discharge with an under other than honorable conditions character of service.  The immediate commander remarked that the applicant's conduct rendered him triable by court-martial under circumstances which could lead to a bad conduct or a dishonorable discharge.

11.  On 27 December 1984, his intermediate commander also recommended approval of the discharge with an under other than honorable conditions character of service.

12.  On 14 January 1985, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, for the good of the service - in lieu of trial by court-martial.  He directed he receive an under other than honorable conditions character of service and be reduced to the lowest enlisted grade.  On 6 February 1985, he was accordingly discharged.  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 court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed 2 years,
9 months, and 28 days of creditable active service and he had 697 days of time lost.

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

14.  He submitted a statement from his pastor wherein he states that he supports the applicant's intent.

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 that his discharge should be upgraded.

2.  The evidence of record shows he was 18 years of age at the time of his enlistment and 20 years of age at the time of his AWOL.  However, there is no evidence in the available records that shows he was any less mature than other Soldiers of the same age who honorably completed their terms of service.  Furthermore, the available evidence does not support the applicant's contention that his AWOL was a result of his age.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant 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 the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's under other than honorable conditions discharge accurately reflects his overall record of service.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgraded 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)                                         AR20090020743



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ABCMR Record of Proceedings (cont)                                         AR20090020743



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