IN THE CASE OF:	  

		BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100007700 


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.

2.  The applicant states, in effect, that sufficient time has passed for his discharge to be upgraded.

3.  The applicant did not provide any documentary evidence in support of his application. 

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 the Regular Army on 6 December 1984 for a period of 3 years.  He completed his initial entry training and he was awarded military occupational specialty 31K (Combat Signaler).  On 29 May 1985, he was assigned to Company A, 3rd Battalion, 68th Air Defense Artillery and stationed at Fort Bragg, NC.

3.  The applicant's service personnel records contain documentation showing he was reported absent without leave (AWOL) on 17 July 1985.

4.  On 24 November 1987, the applicant was apprehended by civilian authorities and charged with a hit and run incident.  He was confined at the county detention center pending disposition of the civilian charge.  On 29 November 1987, he appeared in civilian court and he was given credit for time served then returned to military control.  On 21 December 1987, he was sent to the U.S. Army Personnel Control Facility located at Fort Knox, KY. 
   
5.  On 23 December 1987, court-martial charges were preferred against the applicant for being AWOL during the period 17 July 1985 to 29 November 1987.

6.  On 23 December 1987, 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 Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge 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.

7.  In his request for discharge, the applicant acknowledged that he was making the request of his own free will, he understood the elements of the offense he was charged with, and that he was guilty of the offense for which he was charged.  He further acknowledged that he was afforded the opportunity to consult with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veteran's Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

8.  On 5 January 1988, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be given an under other than honorable conditions discharge.

9.  Accordingly, on 5 February 1988 the applicant was discharged.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 9 months and 18 days of creditable active service with time lost from 17 July 1985 to 28 November 1987.

10.  There is no record or evidence to show the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

11.  References:

   a.  The Manual for Courts-Martial (MCM) Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge (Dishonorable Discharge or Bad Conduct Discharge) is authorized for an AWOL offense of 30 days or more.  Additionally, the maximum punishment for AWOL includes confinement of 12 to 18 months and a forfeiture of all pay and allowances.
   
   b.  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.

   c.  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 sufficient time has passed since his discharge and it should now be upgraded.  While time has passed, this fact alone is not sufficient justification to upgrade a properly issued discharge.  

2.  After an AWOL period of 2 years, 4 months, and 12 days, the applicant voluntarily requested discharge under the provisions of Army Regulation


635-200, chapter 10, in lieu of trial by court-martial for this extended period of AWOL which is punishable under the UCMJ.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  The quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

3.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  In view of the foregoing, there is an insufficient 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)                                         AR20100007700



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)