IN THE CASE OF:	  

		BOARD DATE:	  21 September 2010

		DOCKET NUMBER:  AR20100011346 


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 1988 discharge under other than honorable conditions be upgraded.

2.  The applicant states time has gone by and he has lived a better life with no problems.

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

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.  Records available to the Board indicate the applicant enlisted in the Regular Army on 9 March 1984.  He successfully completed basic training and advanced individual training but he was released from airborne training in July 1984 for failing to adapt to that training.  In August 1984, he was assigned to Fort Bragg, North Carolina as a food service specialist.  By November 1985. he had attained the rank of specialist/E4.

3.  In February 1986, he was punished under Article 15 of the Uniform Code of Military Justice for failing to be at his appointed place of duty at the time prescribed.

4.  On 16 May 1986, he departed absent without leave (AWOL).  He was apprehended by civilian authorities and returned to military control at Fort Ord, California on 5 May 1988.

5.  On 19 May 1988, after charges were preferred, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of being tried by court-martial.  He acknowledged he understood he could receive an under other than honorable conditions discharge as a result.  He also indicated he understood such a discharge could result in the denial of veteran's benefits under State and Federal laws.  

6.  The appropriate authority approved the applicant’s request, and on 23 June 1988 he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of being tried by court-martial with an under other than honorable conditions discharge.  He completed 2 years, 3 months, and 25 days of creditable service.  He had lost time from 16 May 1986 through 8 March 1987 and 9 March 1987 through 5 May 1988.  This lost time equals 719 days and 423 days were lost after his normal expiration term of service date.

7.  The applicant’s record does not contain any evidence he applied to the Army Discharge Review Board to have his discharge upgraded.

8.  References:

   a.  Army Regulation 635-200 sets forth the basic authority for 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.  An under other than honorable conditions discharge is normally considered appropriate.
   b.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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 inappropriate.

   c.  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 discharge under other than honorable conditions was appropriate considering the basis for the separation.  His records show he requested discharge for the good of the service in lieu of trial by court-martial.  There is no evidence indicating his separation was not accomplished in compliance with regulatory guidance and there is no indication of any procedural errors that would have jeopardized his rights.

2.  The Army does not now, nor has ever had, a program where an individual’s less than honorable discharge was automatically upgraded based on the passage of time.

3.  The applicant's contention that his discharge should be upgraded because he has lived a good life since his discharged is noted.  However, good post service conduct alone does not serve as a basis to upgrade the character of an individual’s 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)                                         AR20100011346



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100011346



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1