IN THE CASE OF:	  

		BOARD DATE:	  23 September 2010

		DOCKET NUMBER:  AR20100010042 


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 an upgrade of his under other than honorable conditions discharge to a general discharge under honorable conditions. 

2.  The applicant states he was told upon departure his discharge would be upgraded after 6 months.  He does not have any paperwork to support his request; however, he remembers he was on orders to go overseas but he and his wife did not want to go overseas so he left the Army early.  He now knows he did not make the right decision, but he was young and he was going through marital problems at the time.  

3.  The applicant did not provide any additional documents. 

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 records show he was born on 5 November 1964.  He initially enlisted in the U.S. Army Reserve on 17 December 1981 and held military occupational specialty 62F (Heavy Construction Equipment Operator).  

3.  He enlisted in the Regular Army at 19 years and 4 months of age for a period of 4 years on 26 March 1984.  He was assigned to the 299th Engineer Battalion, Fort Sill, OK.  He was promoted through the ranks to specialist four/E-4. 

4.  His records further show he was awarded the Army Service Ribbon, the Sharpshooter Marksmanship Qualification Badge with Rifle Bar (M-16), and the Driver and Mechanic Badge. 

5.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

   a.  On 29 October 1986, for failing to go at the time prescribed to his appointed place of duty and being absent without leave (AWOL) from 16 to 
20 October 1986.
   
   b.  On 22 August 1986, for failing to go at the time prescribed to his appointed place of duty on six separate occasions, missing platoon movement through neglect, and disobeying a lawful order.

6.  On 10 November 1986, he departed his Fort Sill unit in an AWOL status and on 10 December 1986, he was dropped from the Army rolls.  He was apprehended by civilian authorities in Indianola, IA and returned to military control at Fort Sill, OK, on 14 August 1987.

7.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 29 September 1987 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with service characterized as under other than honorable conditions.  He completed a total of 3 years, 1 month, and 8 days of creditable active service and he had 276 days of lost time.

8.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge 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 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, an under other than honorable conditions discharge is normally considered appropriate.

10.  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 his under other than honorable conditions discharge should be upgraded to a general discharge.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 29 September 1987 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his last enlistment. 

4.  The applicant was 19 years and 4 months of age when he enlisted in the RA and he was 22 years of age when he went on his lengthy AWOL.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military their military service obligation or that his AWOL was the result of his age.

5.  The Army has never had a policy wherein an individual’s character of service is upgraded due to the passage of time.  In view of the foregoing evidence, 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)                                         AR20100010042



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ABCMR Record of Proceedings (cont)                                         AR20100010042



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