IN THE CASE OF:	  

		BOARD DATE:	  7 October 2010

		DOCKET NUMBER:  AR20100010606 


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 received an honorable discharge for his initial enlistment in the Army.  He reenlisted and then made a bad decision without considering the consequences, which led to his discharge.  He states he served his country with respect, loyalty, pride, and honor and he wants his military records to reflect that.  He adds he was told his discharge would be upgraded six months after his discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and two support letters.

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 U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 19 December 1985 for a period of 8 years.

3.  He was discharged from the USAR DEP on 13 January 1986 and he enlisted in the Regular Army (RA) on 14 January 1986 for a period of 3 years.  Upon completion of training he was awarded military occupational specialty (MOS) 71L (Administrative Specialist).  He reenlisted in the RA for a period on 23 November 1988 for a period of 4 years.

4.  A DA Form 4187-E (Personnel Action) shows the applicant's duty status was changed from present for duty (PDY) to absent without leave (AWOL), effective 25 August 1989.

5.  Another DA Form 4187-E shows the applicant's duty status was changed from AWOL to PDY, effective 6 September 1989.

6.  The applicant again departed AWOL on 8 September 1989 and he was dropped from the rolls (DFR) of his unit on 7 October 1989.  He subsequently returned to his unit on 1 November 1989.

7.  On 7 November 1989, court-martial charges were preferred against the applicant for being AWOL from 8 September to 1 November 1989; for stealing $150.00, the property of another Soldier on 22 September 1989; and for, with intent to defraud, falsely making in its entirety a check in the amount of $150.00, which, if genuine, would operate to the legal harm of another on 22 September 1989.

8.  On 9 November 1989, the applicant consulted with legal counsel and he voluntarily requested a discharge under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

   a.  He was afforded the opportunity to consult with counsel.  He was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.
   
   b.  The applicant acknowledged he understood that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or this Board if he desired a review of his discharge; however, an act of consideration by either board did not imply that his discharge would be upgraded.

   c.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were submitted with his request.

   d.  The applicant's statement shows that he requested that the discharge authority consider his 3 years and 7 months of service in the Army during which he was a good Soldier and executed his duties with pride and professionalism.  He stated he found himself in an undesirable predicament and acknowledged there were other options he should have considered rather than going AWOL.  He added that after going AWOL he began experiencing financial problems; he had two small children to care for; and he misappropriated a check that did not belong to him.  He asked that his request for discharge be approved to prevent further actions being taken against him.

9.  On 28 November 1989, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.  He also directed the applicant be reduced to the rank/grade of private (PV1)/E-1.

10.  The applicant's DD Form 214 shows he was discharged on 13 December 1989 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with service characterized as under other than honorable conditions.  At the time he had completed 3 years, 8 months, and 23 days of net active service this period.

	a.  Item 18 (Remarks) shows he served honorably in the USAR DEP from
19 December 1985 to 13 January 1986 and in the RA from 14 January 1986 to 22 November 1988.

   b.  Item 29 (Dates of Time Lost During This Period) shows he had time lost from 25 August through 5 September 1989 and from 8 September through
31 October 1989.

11.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

12.  In support of his application, the applicant provides two letters in support of his request from two former senior noncommissioned officers.

   a.  First Sergeant C---- S------, Jr., U.S. Army (Retired), states he has known the applicant for a few years and he was surprised to learn he had a problem with his discharge.  He also states that he served in the U.S. Army for 26 years; he encountered many Soldiers who had problems; some continued their troubled behavior throughout their lives, but some were able to mature and change.  He adds that the applicant is one of those who learned from his mistakes and he has excelled in his life subsequent to his discharge from the U.S. Army.

   b.  Sergeant First Class D--- W------, U.S. Army (Retired), states the applicant has been a friend of his for more than 20 years.  He also states the applicant served honorably during his initial enlistment in the U.S. Army, but he then got involved with some Soldiers that contributed to his difficulties and led to trouble.  He adds that the applicant accepted a discharge in lieu of court-martial and was informed that the conditions of his discharge could be overturned after a period of six months.  He states the applicant has been a dedicated citizen since his discharge and that the applicant's discharge should be upgraded so that he may receive veteran's benefits.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for periods of AWOL in excess of 30 days, Article 121 for larceny and wrongful appropriation of any kind, and Article 123 for forgery with intent to defraud.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  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.


   b.  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.

   c.  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 that his under other than honorable conditions discharge should be upgraded because he served honorably during his initial enlistment, he reenlisted and made a bad decision that led to his discharge, and he was told his discharge would be upgraded six months after his discharge.

2.  The applicant's contentions and the letters of support he provided were carefully considered.

   a.  Records show the applicant's initial period of honorable active service in the RA from 14 January 1986 to 22 November 1988 is documented on his
DD Form 214.

   b.  The evidence of record shows the applicant acknowledged he understood that there is no automatic upgrading nor review by any Government agency of a less than honorable discharge and that he must apply to the ADRB or the ABCMR if he desired a review of his discharge.

   c.  The applicant's post-service conduct was considered; however, it is not sufficiently mitigating to warrant relief.
   
   d.  In view of all of the foregoing, there is no basis for granting the applicant's requested relief.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-
martial was voluntary and administratively correct.  All requirements of law and 


regulations were met, and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge far outweigh his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

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)                                         AR20100010606



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ABCMR Record of Proceedings (cont)                                         AR20100010606



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