BOARD DATE:	  25 March 2010

		DOCKET NUMBER:  AR20090020765 


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 upgrade of his under other than honorable conditions discharge. 

2.  The applicant states, in effect, that he desires an upgrade of his discharge to be eligible for benefits and employment opportunities. 

3.  The applicant provides a self-authored statement and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 (RA) on 1 April 1986 and was trained in and awarded military occupational specialty 95B (Military Police).  
3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in 
item 21 (Time Lost) that he was absent without leave (AWOL) during the period 24 August 1986 through 9 October 1986.

4.  DD Form 458 (Charge Sheet) indicates the applicant was charged for being AWOL during the period 24 August 1986 through 10 October 1986.  

5.  The applicant's separation packet includes a statement signed by him which shows that he attempted to leave the Army during Basic Combat Training, was told he could not leave by a senior drill sergeant, and decided not to return during a visit to his home.  He also stated that joining the Army was a mistake and he was under ongoing emotional pressure.

6.  On 20 October 1986, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  Prior to submitting his request, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

7.  In his voluntary request for discharge, the applicant indicated that he understood by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his 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 law.

8.  On 18 December 1986, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 28 January 1987, the applicant was discharged accordingly.  He completed a total of 8 months and 11 days of creditable active military service with 48 days of time lost.

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


10.  The applicant provides a self-authored statement in which he makes the following assertions:

     a.  He was sexually and physically assaulted by a drill instructor.  

     b.  He did not return from leave after Advanced Individual Training because he feared for his life.

     c.  Had he not been assaulted, he would have completed his military obligation.

     d.  The individual he accuses of assault was removed from his position as a drill instructor due to complaints filed by other enlisted personnel.  

11.  There is no evidence in the applicant's record which shows that he sought assistance from his chain of command or any other authority after the alleged assault.  

12.  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.

13.  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 request for upgrade of his discharge was carefully considered and not supported by the evidence in this case.

2.  The applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge 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.

3.  The applicant does not provide any documentary evidence to substantiate that he was sexually or physical assaulted during his military service. 

4.  Based on his record of indiscipline, which includes 48 days of being AWOL, the applicant's service clearly does 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 a general or honorable 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)                                         AR20090020765





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090020765



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1