IN THE CASE OF:	  

		BOARD DATE:	  11 January 2011

		DOCKET NUMBER:  AR20100016413 


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 discharge be upgraded.

2.  The applicant states he has not been in trouble since he was discharged and he currently is in a drug and alcohol rehabilitation program. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with an ending date of 4 August 1986 and three character reference letters in support of his application. 

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 Regular Army on 13 November 1984 for a 3-year period of service.  He completed his initial entry training and was awarded military occupational specialty 13B (Cannon Crewmember). 

3.  The applicant's service records do not reveal a disciplinary history nor is there any record of conviction by court-martial.

4.  On 12 June 1986, court-martial charges were preferred against the applicant for being AWOL from 8 April to 3 June 1986.

5.  On 12 June 1986, the applicant signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial, indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making the request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

6.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial on 16 July 1986 and directed issuance of an under other than honorable conditions discharge.

7.  The applicant was discharged accordingly on 4 August 1986.  The DD Form 214 issued at the time confirms he completed 1 year, 6 months, and 27 days of net active service with his service characterized as under other than honorable conditions.  Item 18 (Remarks) shows he had a total of 52 days lost time and Item 29 (Time Lost During this Period) of his DD Form 214 shows the entry "860408 TO 860602."  

8.  There is no documentary evidence to show the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations for a discharge upgrade.

9.  In support of his application, the applicant provided three character reference letters from the drug and alcohol rehabilitation program that is providing him services.  The letters state he is a model client who is progressing well in a 6-month residency program that includes monthly monitoring through drug screening tests.  

10.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  The maximum punishment for AWOL of 30 or more days is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to the lowest enlisted grade and a forfeiture of all pay and allowances.

	b.  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.

	c.  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.

	d.  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 discharge should be upgraded because he, in effect, needs assistance.

2.  The applicant was charged under the UCMJ for being AWOL in excess of 30 days.  This act is a violation of the UCMJ with a maximum punishment of confinement for 12 to 18 months, reduction to the lowest enlisted grade, forfeiture of all pay and allowances, and a dishonorable or bad conduct discharge. 

3.  Upon returning to military control and after meeting with counsel who informed him he could lose all Veterans benefits offered by the local, state or Federal government, the applicant voluntarily elected a discharge under the provisions of Army Regulation 635-200, chapter 10.  This type discharge is a voluntary request for discharge in lieu of trial by court-martial.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the known facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.  Therefore, there is no basis for warranting an upgrade of his under other than honorable conditions discharge.

5.  The Army Board for Correction of Military Records does not upgrade an individual's discharge characterization for the purpose of entitlement to Veterans benefits by other government agencies. 

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)                                         AR20100016413





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ABCMR Record of Proceedings (cont)                                         AR20100016413



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