IN THE CASE OF:	  

		BOARD DATE:	  27 July 2010

		DOCKET NUMBER:  AR20100007506 


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 characterization of service be upgraded to honorable. 

2.  The applicant states, in effect, while attending divers training during his tour in Korea, an incident occurred which involved Soldiers in his unit drowning.  He contends he was later assigned to divers training in Panama City, Florida where he decided to take leave.  The incident in Korea had affected his sense of reasoning and he did not report back to training.  However, upon notification of his new assignment to Fort Knox, Kentucky, he did report for duty.

3.  He states, based on the event he witnessed and the affect it had on his mind, he feels that had the event not taken place, he would not have gone absent without leave (AWOL) and would have become the Soldier he was expected to become. 

4.  The applicant provides a copy of a letter, dated 14 December 2009, from his previous employer and a copy of Department of Veterans Affairs (VA) discharge upgrade request, dated 6 January 2010. 

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 16 March 1983 for a period of 6 years.  On 20 April 1983, he was discharged from the USAR DEP and on 21 April 1983, he enlisted in the Regular Army for a period of 3 years.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 12B (Combat Engineer).

3.  A DD Form 458 (Charge Sheet) shows the applicant was charged with one violation of the Uniform Code of Military Justice (UCMJ) in that he did, on or about 11 August 1985, without authority, go into an AWOL status and did remain so until on or about 16 March 1993. 

4.  On 19 March 1993, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  Prior to submitting his request, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  The applicant was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that he would not be submitting any statements with his request.

5.  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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  The applicant also elected not to undergo a separation medical examination. 

6.  On 20 April 1993, the separation authority approved the applicant's request for discharge and directed the issuance of an under other than honorable conditions discharge certificate.  On 6 May 1993, the applicant was discharged accordingly.

7.  The DD Form 214 (Certificate or Release or Discharge from Active Duty) issued to the applicant at the time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions characterization of service.  He had completed 2 years, 5 months, and 11 days of total active service. 

8.  There is no indication in the applicant's record to show that he applied to the Army Discharge Review Board for consideration of his case within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge certificate would normally be furnished to an individual who was discharged for the good of the Service.  

10.  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.

11.  Army Regulation 635-200, pragraph 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 contention that his under other than honorable conditions characterization of service should be upgraded to honorable was carefully considered and found not to be supported by the evidence.

2.  Based on the applicant's prolonged period of AWOL, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests 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.  There is no evidence of an error or injustice on the part of the Army.  Therefore, the applicant is not entitled to an honorable or general characterization of service.

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)                                         AR20100007506





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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)