IN THE CASE OF:	  

		BOARD DATE:	  20 July 2010

		DOCKET NUMBER:  AR20090021914 


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 to an honorable discharge.

2.  The applicant states that when he received this discharge:

* he was a lost and floundering boy; a victim of a broken family
* he did not fully understand the impact this discharge would have on his future
* this discharge is not representative of the man he is now
* he planned a career in law enforcement but this discharge is a roadblock
* he was told he could complete college while serving in the Army; however, his superiors were not interested with his concerns to advance in his college studies
* he felt misled, tricked, and depressed 

3.   The applicant provides a self-authored letter, four reference letters, a copy of his birth certificate, documentation stating he did not have a criminal record, and 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's record shows he enlisted in the Regular Army on 13 May 1986.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty (MOS) 11B (infantryman).

3.  The applicant’s record shows he was absent without leave (AWOL), dropped from the rolls (DFR) of the Army, and confined on several occasions during the period of 21 April 1987 through 14 October 1987.  On 26 October 1987, while in a DFR status, the applicant surrendered to military authorities at Fort Meade, MD.

4.  On 27 October 1987, the applicant submitted a statement explaining why he had left his at Fort Drum, NY.  He states he felt he was being unreasonably harassed by his sergeant and he was not able to clear his record from a previous AWOL.  He was the lowest ranking Soldier in the company and he was losing his self esteem.

5.  On 4 November 1987, a court-martial charge was preferred against the applicant for violation of Article 86, Uniform Code of Military Justice (UCMJ) for being AWOL from his unit at Fort Drum, NY from on or about 9 September 1987 to on or about 26 October 1987.

6.  On 4 November 1987, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He requested this discharge based on the charges preferred against him under the UCMJ for being AWOL.  He also acknowledged that he may be given a bad conduct or a dishonorable discharge.  The applicant acknowledged that if his request for discharge is accepted, he may be discharged under conditions other than honorable.

7.  The applicant consulted with counsel and he was advised of his rights.  He acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an 

Under Other than Honorable Conditions Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He chose not to submit a statement in his own behalf.

8.  On 20 November 1987, the applicant's unit commander recommended approval of his request for discharge.

9.  On 18 December 1987, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200,
chapter 10, and directed he be issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  Accordingly, on 11 March 1988, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.  At the time of his discharge he had completed
1 year, 7 months, and 13 days of active service with 73 days of time lost due to AWOL and confinement.

11.  The applicant submits four reference letters attesting to his post-service character, accomplishments, and goals.  They state he is a good man, smart, hard-working, and trustworthy.

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 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  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 clearly 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows that the applicant was charged with being AWOL from on or about 9 September 1987 to on or about 26 October 1987.  He accrued a total of 73 days of time lost due to AWOL and confinement.

2.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, appears to have been administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress.

3.  Although his reference letters praise his post-service character and accomplishments, they are insufficient to mitigate his unsatisfactory conduct and performance during his active duty service.

4.  In view of foregoing, there is no basis for granting the applicant's requested relief.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.

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)                                         AR20090021914



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021914



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1