IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090021505 


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 found not guilty "per line 6 of the 4939."  He further states that without a discharge upgrade he is unable to seek Department of Veterans Affairs (VA) medical care, other VA benefits, and employment opportunities.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a USAARMC Form 4939 (Characterization of Service Checklist for Administrative Discharge Actions).  

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 he enlisted in the Army National Guard on 23 February 1977 and served until he was issued a general discharge and involuntarily ordered to active duty on 11 July 1978.  He was awarded the military occupational specialty of recovery specialist.  The highest rank/grade he held was private/E-2.

3.  Summary Court-Martial Order Number 27, dated 13 August 1979, shows the applicant was found not guilty of being absent without authority (AWOL) from his organization during the period 11 July 1978 to 26 July 1979.

4.  A Headquarters, USA Personnel Control Facility memorandum, subject: Determination, dated 23 August 1979, states that it had been administratively determined that the applicant was absent without authority from his unit during the period 11 July 1978 to 26 July 1979.

5.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 7 November and 17 December 1979 for failing to go to his appointed place of duty at the time prescribed.

6.  Court-martial charges were preferred against the applicant for being AWOL during the period 2 January 1980 to 8 July 1981.

7.  On 17 July 1981, the applicant voluntarily requested, in writing, that he be discharged for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The applicant stated that he understood he could request this discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

8.  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that were attached to his request.  He acknowledged that by submitting his request he was admitting guilt to the charge or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel and he was fully advised of the nature of his rights under the UCMJ.



9.  He further acknowledged he understood that if his discharge request was accepted, he could be discharged under other than honorable conditions.  He acknowledged he had been advised and that he understood the possible effects 
of an under other than honorable conditions discharge, and that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

10.  On 30 July 1981, the separation authority approved the applicant's request for discharge under provisions of chapter 10, Army Regulation 635-200, for the good of the service.

11.  The applicant was discharged from active duty on 13 August 1981 with an under other than honorable conditions discharge.  The DD Form 214 he was issued for this period of service shows he completed 6 months and 8 days of net active service.  Item 29 (Dates of Time Lost during this Period) contains the entry, "791127-791129, 800102-810707, 780711-790725, 791226-791226."

12.  On 9 November 1988, the Army Discharge Review Board denied the applicant's request to upgrade his under other than honorable conditions discharge.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10, of the version of this regulation in effect at the time, provided that a member who had committed an offense or offenses the punishment for any of which, under the UCMJ and the Manual for Courts-Martial, United States, 1969 (Revised Edition), included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service.  At the time of the applicant's separation, an under other than honorable discharge was normally appropriate for a member who was discharged for the good of the service.

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.



DISCUSSION AND CONCLUSIONS:

1.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the UCMJ on two occasions for failing to go to his appointed place of duty at the time prescribed.  

2.  While the applicant was found not guilty of the specification of being AWOL from his organization for more than 1 year by a summary court-martial he was administratively found to have been AWOL for that same period of time.  Furthermore, his records show that he had a total of approximately 925 days lost time.  He was again AWOL for a lengthy period of time, from 2 January 1980 to   8 July 1981, and this serious misconduct warranted a discharge under other than honorable conditions.

3.  The applicant voluntarily request discharge under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct discharge.

4.  Based on the applicant's record of indiscipline, his 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, he is not entitled to a general discharge.

5.  The ABCMR does not upgrade properly issued discharges solely for the purpose of establishing eligibility for other programs or benefits.

6.  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)                                         AR20090021505



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ABCMR Record of Proceedings (cont)                                         AR20090021505



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