IN THE CASE OF:	  

		BOARD DATE:	  9 September 2010

		DOCKET NUMBER:  AR20100009705 


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 discharge under other than honorable conditions be upgraded. 

2.  The applicant states:

* He did serve a substantial amount of his enlisted time under honorable conditions despite the reenlisted term of service in question
* He was also assured his discharge would be upgraded after 4 years from his departure from military service

3.  The applicant provides no 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 13 August 1986 for a period of 3 years.  He successfully completed basic and advanced individual training and was awarded military occupational specialty 16S (MANPADS crewmember).  He attained the rank of specialist four on 13 October 1988.  On 1 February 1989, he was honorably discharged for immediate reenlistment.  He reenlisted on 
2 February 1989 for a period of 5 years. 

3.  On 22 January 1991, charges were preferred against the applicant for two specifications of desertion (did on 10 January 1991 with intent to avoid hazardous duty and shirk important service quit the rear detachment of his unit about to deploy to Saudi Arabia, then a hostile fire zone) remain so absent in desertion until 11 January 1991; and did on 19 January 1991 during a time of war with intent to avoid hazardous duty (quit the rear detachment of his unit to avoid duty in or near combat in Saudi Arabia) did remain so absent in desertion until 
20 January 1991 and two specifications of missing movement through design.   

4.  On 30 January 1991, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated:

* He respectfully asked that his request for discharge be approved because an other than honorable discharge was sufficient punishment in this case
* In November 1989 he discovered Islam
* He realized his religious beliefs conflicted with his military duty and he notified his chain of command
* They reassigned him to the orderly room because they believed he was sincere
* He filed a conscientious objector packet in October 1990 but unfortunately his unit deployed before this application was reviewed
* His religious views developed after he reenlisted
* A chapter 10 discharge is appropriate because his religious beliefs prevent him from being an asset to the Army  


5.  The applicant's chain of command recommended disapproval of his request for discharge for the good of the service.

6.  On 31 January 1991, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 26 February 1991 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 4 years, 6 months, and 14 days of creditable active service with 4 days of lost time.

8.  On 3 November 1993, the Army Discharge Review Board denied the applicant's request for a general discharge.

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 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.

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.




12.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The applicant's record of service during his last enlistment included serious offenses (desertion and missing movement) for which court-martial charges were preferred and 4 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general 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)                                         AR20100009705





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ABCMR Record of Proceedings (cont)                                         AR20100009705



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