IN THE CASE OF:	  

		BOARD DATE:	  19 October 2010

		DOCKET NUMBER:  AR20100010313 


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

2.  The applicant states he went absent without leave (AWOL) because his ex-wife told him she was very sick and she was going to lose their baby.  The applicant states he tried everything but his chain of command would not let him go home.  He went home anyway only to discover his ex-wife had lied to him.  The applicant states it was the biggest mistake that he has ever made.  It has been over 20 years now and he is trying to obtain a position in law enforcement, but he needs his discharge upgraded so he can help keep young people from making the same mistake he did.

3.  The applicant provides no additional documentation in support of this case.

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 1 March 1988.  He successfully completed the training requirements and he was awarded military occupational specialty 11B (Infantryman).  

3.  A DD Form 458 (Charge Sheet) shows charges were preferred against the applicant for being AWOL from 3 September 1988 through 18 October 1988.

4.  On 9 November 1988, after consulting with counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  The applicant acknowledged in his request that he understood he could be discharged under other than honorable conditions, 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 (DVA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  The applicant elected not to make a statement in his own behalf.

5.  On 6 March 1989, the appropriate authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed that the applicant be reduced to the lowest enlisted grade and furnished an under other than honorable conditions discharge.  On 7 April 1989, the applicant was discharged with a characterization of service of under other than honorable conditions.  He completed a total of 11 months and 12 days of creditable active service with 55 days of time lost due to being AWOL.

6.  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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

7.  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.

8.  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 it has been over 20 years since he was discharged and he is trying to obtain a position in law enforcement.  Unfortunately, the ABCMR does not correct records solely for the purpose of improving employment opportunities. 

2.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. 

3.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show he had 55 days of lost time due to being AWOL. Based on this fact, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of an honorable or 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)                                         AR20100010313



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ABCMR Record of Proceedings (cont)                                         AR20100010313



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