IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100000698 


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 a general discharge.

2.  The applicant states that he was young at the time and did not realize that his actions would cause him being discharged under other than honorable conditions.  The applicant states his discharge was unjust because he was charged with a misdemeanor.  This was his first offense and prior to his discharge he had a good record.  The applicant states that he got caught up in the middle of something he had nothing to do with, he was young and scared, and the only thing he knew to do was to run.

3.  The applicant further states at this time he not eligible for Department of Veterans Affairs (VA) health benefits and he is unable to obtain medical treatment until his discharge is upgraded.

4.  The applicant provides no additional documentation in support of this case.

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 was born on 12 September 1961.  He enlisted in the Regular Army on 20 June 1980 and he successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty (MOS) 63N (Tank Systems Mechanic) and he was later awarded MOS 19E (Armor Crewman).

3.  A DD Form 458 (Charge Sheet), dated 20 May 1983, shows charges were preferred against the applicant for:

* conspiracy to commit larceny
* being absent without leave (AWOL) for the period 17 April 1983 through 26 March 1987
* failing to obey an lawful order
* stealing a cassette player 
* unlawful entry
* breaking restriction to the limits of his place of duty

4.  On 3 May 1987, after consulting with counsel, the applicant submitted a request for 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.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all benefits administered by the VA; and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide statements in his own behalf.

5.  On 18 May 1987, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  On 8 June 1987, the applicant was discharged with a characterization of service of under other than honorable conditions.  He completed a total of 3 years and 8 days of creditable active service with 1,440 days of time lost due to AWOL.

6.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 20 May 1991, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the reason for discharge and characterization of his service was proper as under other than honorable conditions.

7.  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.

8.  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 he was young at time and did not realize that his actions would cause him being discharged under other than honorable conditions.  However, records show that the applicant was 18 years, 10 months, and 8 days old at the time he entered active duty.  He was 21 years, 8 months, and 8 days old at the time he went AWOL, and by then he should have been well aware of the Army's standards of conduct.  Therefore, his contention that he was young at the time of his offenses does not mitigate his indiscipline during his active duty service.

2.  The applicant further contends that his discharge is unjust because he unable to obtain VA medical treatment.  However, evidence of record shows that the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200, chapter 10, rather than face a court-martial offense.  Records show that counsel properly advised him and that he fully understood the consequences of the discharge that he requested.  The ABCMR does not grant relief solely for the purpose of obtaining VA benefits.

3.  The applicant's records show that he had one instance of a lengthy AWOL.  He had completed 3 years and 8 days of active creditable service before his separation with a total of 1,440 days of time lost due to being AWOL.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of a general discharge.  Therefore, there is no basis for granting the applicant's requested relief.

4.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

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)                                         AR20100000698



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ABCMR Record of Proceedings (cont)                                         AR20100000698



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