IN THE CASE OF:	  

		BOARD DATE:	  5 October 2010

		DOCKET NUMBER:  AR20100011795 


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

2.  The applicant states he went absent without leave (AWOL) because he was being racially discriminated against by his company commander.

3.  The applicant provides no additional documentation.

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.  On 24 April 1985, the applicant enlisted in the Army for 4 years and he completed training as a light wheel vehicle mechanic.

3.  The applicant went AWOL on 10 December 1987 and he remained absent in desertion until he surrendered to military authorities on 14 March 1988.

4.  On 15 March 1988, the applicant was notified that charges were pending against him for AWOL.  He acknowledged receipt of the notification and after consulting with counsel, he 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 trial by court-martial. 
In his request for discharge, the applicant acknowledged he understood the following:

* if his request for discharge were accepted, he may be discharged under other than honorable conditions 
* as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits
* he may be ineligible for many or all benefits administered by the Veterans Administration
* he may be deprived of his rights and benefits as a veteran under both Federal and State laws
* he may expect to encounter substantial prejudice in civilian life by reason of an undesirable discharge

5.  The appropriate authority approved the request for discharge on 7 April 1988 and directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 20 May 1988 the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He completed 2 years, 9 months, and 23 days of net active service with approximately 3 months and 4 days of lost time due to AWOL.

6.  The available records do not show that the applicant ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 
15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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.

8.  Paragraph 3-7a of Army Regulation 635-200 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.

9.  Paragraph 3-7b of Army Regulation 635-200 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 was discharged in accordance with applicable laws and regulations in effect at that time.

2.  The type of discharge directed was appropriate considering all the facts of his case.

3.  His contentions have been noted; however, they are not sufficiently mitigating to warrant the relief requested.  There is no evidence in the available record, nor has the applicant submitted any evidence to show he was being discriminated against by his company commander while he was in the Army.  He acknowledged that he understood the effects of a less than fully honorable discharge at the time he submitted his voluntary request for discharge for the good of the service in lieu of trial by court-martial.

4.  He had approximately 3 months and 4 days of lost time due to AWOL.  Considering the nature of his offense, the type of discharge he was issued appropriately reflects his overall record of service.

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)                                         AR20100011795



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ABCMR Record of Proceedings (cont)                                         AR20100011795



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