IN THE CASE OF:	  

		BOARD DATE:	  14 October 2010

		DOCKET NUMBER:  AR20100008800 


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 his under other than honorable conditions discharge be upgraded to honorable. 

2.  The applicant states he is looking for an upgrade because he wanted to join the California Army National Guard as an officer and this is the route he was informed to go.  He states he has grown up and matured a lot since his first enlistment and he really wants to serve his country.  He realizes he made a big mistake when he was 19 years old and being absent without leave (AWOL) and coming back to get out.  He admits he was wrong by not living up to his commitment and wants a second chance to fix that.  He knows he can be a great military officer and really wants the opportunity to prove to himself and his family and also to the military.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 January 1994. 

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, and 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 enlisted in the Regular Army for a period of 3 years on 22 January 1992.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was assigned to Company B, 1st Battalion, 325th Infantry (Airborne), Fort Bragg, NC. 

3.  On 19 August 1994, he departed his unit in an AWOL status and, on 18 September 1994, he was dropped from the Army rolls.  He returned to military control on 25 October 1994.

4.  On 3 November 1994, court-martial charges were preferred against him for one specification of being AWOL from 19 August 1994 until 25 October 1994.  

5.  On 3 November 1994, he consulted with legal counsel who advised him 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 Uniform Code of Military Justice (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 requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  In his request for discharge, he acknowledged he understood that if the discharge request were approved, he could be discharged under other than honorable conditions and be furnished an Undesirable Discharge Certificate.  He also acknowledged he understood that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he could expect to encounter substantial prejudice in civilian life

7.  On 5 December 1994, the separation authority approved the applicant’s request for discharge and directed he be issued an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 21 December 1994, the applicant was discharged accordingly.  The DD Form 214 he was issued confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial and with a characterization of service of under other than honorable conditions.  He completed 2 year, 8 months, and 24 days creditable military service and had 67 days of lost time.

8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  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, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.  

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, 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’s 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.  

2.  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, he must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a discharge upgrade

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)                                         AR20100008800





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100008800



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1