IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100009228 


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 made a huge mistake in 1991 when he went absent without leave (AWOL).  He used poor judgment by not taking his personal problems to his chain of command.  He further states that between 1981 and 1992, he was a graduate of the quartermaster, infantryman, airborne, and the Primary Leadership Course, plus training in deployments around the world.  He requests the Board review his record prior to his AWOL and reconsider his discharge.

3.  The applicant did not provide any documentation in support of his request. 

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 record shows he had prior enlisted service in the Army National Guard and entered active duty for the purpose of basic combat and advanced individual training on 22 August 1981.  He was awarded military occupational specialty (MOS) 76Y (Unit Supply Specialist).  He was released from active duty (REFRAD) on 22 April 1983 and transferred to the 111th Medical Battalion, Galveston, TX.

3.  On 9 November 1983, he enlisted in the Regular Army for a period of 3 years and served in MOS 11B (Infantryman).  He was honorably REFRAD on 14 May 1986 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 6-3, for dependency.  He was transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) to complete his Reserve obligation.  On 8 November 1988, he again enlisted in the Regular Army for a period of 4 years in MOS 11B.  He was advanced to the rank/pay grade of specialist (SPC)/E-4 on 26 January 1989.

4.  A DD Form 458 (Charge Sheet), dated 17 December 1991, shows the applicant was charged with one specification of violation of Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 
29 July until on or about 4 December 1991.

5.  On 17 December 1991, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of 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 chose not to submit a statement in support of his case.

6.  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 Department of Veterans Affairs, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 23 January 1992, the separation authority approved the applicant's request for discharge and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 7 February 1992, the applicant was discharged accordingly.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 7 February 1992 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service - in lieu of court-martial.  He had completed a total of 2 years,
10 months, and 24 days of net active service this period, 2 years and 10 months of prior active service, and 3 years and 5 months of prior inactive service.  He had 129 days of time lost due to AWOL.

9.  There is no evidence showing that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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.

11.  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.

12.  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 request for upgrade of his under other than honorable conditions discharge to an honorable discharge was carefully considered. 

2.  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.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  Based on his record of indiscipline, which includes 129 days of time lost due to AWOL, the applicant's service during his last enlistment clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant is not entitled to an upgrade of his 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)                                         AR20100009228



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         A