IN THE CASE OF:	  

		BOARD DATE:	    20 January 2011

		DOCKET NUMBER:  AR20100018334 


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 an upgrade of his under other than honorable conditions discharge.

2.  The applicant states he was young and did not think things through when he was in the Army.  He also states he has been a productive citizen the past 
20 years, giving children guidance and direction in life.

3.  The applicant provides no additional documentary evidence 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 had prior honorable enlisted service in the Army National Guard of the United States and Kentucky Army National Guard from 1 May 1981 to
10 January 1985.  During this period, he completed initial active duty for training and was awarded military occupational specialty 13B (Cannon Crewman).

3.  The applicant enlisted in the U.S. Army Reserve Delayed Entry Program on 11 January 1985 and he enlisted in the Regular Army for a period of 3 years on 22 February 1985.  At the time he was 20 years of age.

4.  The applicant was issued orders with an availability date of 20 October 1986 for further movement to the 4th Battalion, 325th Infantry [Vicenza, Italy]. 

5.  The applicant was absent without leave (AWOL) from 20 October 1986 through 20 November 1986.

6.  On 24 November 1986, the applicant's company commander preferred court-martial charges against him for violation of the Uniform Code of Military Justice (UCMJ), Article 86, absenting himself from his organization from 20 October to 20 November 1986.

7.  On 25 November 1986, the applicant consulted with legal counsel and 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.  He acknowledged that he was guilty of the charges against him, or of less included offenses therein contained, which also authorize the imposition of a bad conduct or dishonorable 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 laws, and that he may expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Discharge Certificate.
   
   b.  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 not submitted with his request.

8.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

9.  On 5 December 1986, 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/pay grade of private/E-1.

10.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 29 December 1986 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 1 year, 9 months, and 8 days of net active service this period.

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

12.  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.

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

   a.  Chapter 10, of the version in effect at the time, provides that a member who 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.  Chapter 3, paragraph 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.  Chapter 3, paragraph 7b, provides that an under honorable conditions discharge 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 under other than honorable conditions discharge should be upgraded because he was young and did not think things through when he was in the Army, and he has been a productive citizen for the past 
20 years.

2.  Considering the applicant had demonstrated the capacity for satisfactory service by his prior enlisted service in the Army National Guard, his contention that he was young is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

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 offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate and equitable.

4.  The evidence of record shows the applicant was en route to Italy when he went AWOL for a period of 31 days.  The evidence of record also shows the applicant elected not to offer an explanation for his failure to comply with official orders reassigning him overseas.  In addition, the applicant completed only about 1 year and 9 months of his 3-year enlistment commitment.  Thus, the evidence of record shows the quality of the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  In addition, the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  The applicant's post-service conduct and contributions to his community were considered; however, they are not sufficiently mitigating to warrant relief.


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)                                         AR20100018334



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ABCMR Record of Proceedings (cont)                                         AR20100018334



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