IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010 

		DOCKET NUMBER:  AR20100007474 


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 he was young and impressionable.  Upon his arrival at Fort Lewis, WA, he was introduced to alcohol which was an acceptable practice back then.  However, he was not equipped with the tools to make responsible decisions.  He is now older and wiser.  His discharge was a direct result of his addiction.  An upgrade of his discharge would allow him the opportunity to recover and become a productive member of society.

3.  The applicant provides 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's records show he was born on 25 December 1962 and he enlisted in the Regular Army at 17 years and 6 months of age on 8 July 1980.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he held during his military service was private (PV2)/E-2.  His records also show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on two occasions for failing to go at the time prescribed to his appointed place of duty and disobeying a lawful order.

4.  On 19 May 1981, he departed his unit in an absent without leave (AWOL) status and he was subsequently dropped from the rolls (DFR) of the Army on 18 June 1981.  He was apprehended by civilian authorities and he was returned to military control on 24 June 1981.

5.  On 29 June 1981, his command preferred court-martial charges against him for one specification of being AWOL.

6.  On 1 July 1981, 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 voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of for the good of the service - in lieu of trial by court-martial.

7.  In his request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by anyone.  He also indicated he understood 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 further acknowledged he understood if the 

discharge request was approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State law.  His request also stated "under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."  He also elected not to submit a statement in his own behalf.

8.  On 16 July 1981, 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, and directed he receive an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  On 23 July 1981, the applicant was discharged accordingly.

9.  His DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  This form also shows he completed 11 months and
10 days of creditable active service with 36 days of lost time.

10.  There is no indication he petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  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.

12.  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.

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 contends his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The evidence of record shows he was 17 years and 6 months of age at the time he enlisted and he was over 18 years of age at the time he committed his offense that led to his discharge.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Furthermore, there is no evidence in his records, and he did not provide substantiating evidence that shows his AWOL was the result of his age.

3.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

4.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to an honorable or a general, under honorable conditions 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)                                         AR20100007474



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)