IN THE CASE OF:	  

		BOARD DATE:	    3 March 2011

		DOCKET NUMBER:  AR20100021106


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, in effect, correction of his DD Form 214 (Certificate of Release or Discharge from Active Duty) to show he was honorably discharged.

2.  The applicant states:

* the type of discharge he was given is incorrect
* he has a DD Form 303A (Certificate in Lieu of Lost or Destroyed Discharge (Army)) that states he has an honorable discharge
* during transfer to a new duty station his records were lost and he was given a discharge under other than honorable conditions which is incorrect
* he needs his DD Form 214 to be corrected

3.  The applicant provides:

* a diploma for completion of Individual Infantry Training, dated December 1979
* a Certificate of Training for successful completion of the Headstart to German Orientation I, dated 25-29 February 1980
* a Certificate of Training for successful completion of the Defensive Driving Course, dated 22 May 1980
* a Certificate of Promotion, dated 1 March 1981
* his DD Form 214, dated 8 December 1989
* a certificate for successful completion of Atlanta's Vet Re-Entry Employment Readiness Training, dated 15 March 1990
* a DD Form 303A, issued 28 February 1991

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 Regular Army on 27 July 1979.

3.  In the form of a memorandum, dated 10 August 1989, the applicant signed an admission of absence without leave (AWOL) for administrative purposes in which he voluntarily declared he was AWOL from 16 December 1981 through 7 August 1989.

4.  On 10 August 1989, the applicant was notified that charges were pending against him for being 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 (Enlisted Personnel Separations), 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 could be discharged under other than honorable conditions
* he could be deprived of many or all Army benefits as a result of the issuance of such a discharge
* he could be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under both Federal and State laws
* he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge

5.  The appropriate authority approved the request for discharge on 10 October 1989 and directed the issuance of a discharge under other than honorable conditions.

6.  On 13 October 1989, the applicant received a general officer memorandum of reprimand (GOMOR) for being in physical control of a motor vehicle when his blood alcohol content was .18 percent on 29 September 1989.  He elected not to make a statement in his own behalf with regard to the GOMOR.

7.  On 8 December 1989, the applicant was discharged under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  The DD Form 214 he received shows he completed 2 years, 8 months, and 29 days of total active service.

8.  A review of his records does not show he ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

9.  The applicant provides a DD Form 303A which shows he was honorably discharged on 8 December 1989.  This certificate was issued to him on 28 February 1991.  He submits a certificate for successful completion of Atlanta's Vet Re-Entry Employment Readiness Training, dated 15 March 1990.  He also submits:

* a diploma for completion of Individual Infantry Training, dated December 1979
* a Certificate of Training for successful completion of the Headstart to German Orientation I, dated 25-29 February 1980
* a Certificate of Training for successful completion of the Defensive Driving Course, dated 22 May 1980
* a Certificate of Promotion, dated 1 March 1981
* his DD Form 214, dated 8 December 1989

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions is normally furnished an individual who was discharged for the good of the service.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.  The documents he submitted have been considered.

2.  He submits a DD Form 303A that shows he was honorably discharged on 8 December 1989.  However, this certificate was issued to him on 28 February 1991 in lieu of a lost or destroyed discharge certificate.  Clearly this discharge certificate was issued to him in error as he was not honorably discharged.

3.  His records show he was discharged on 8 December 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.

4.  There is no evidence contained in his official record that shows he was honorably discharged on 8 December 1989.  The discharge authority directed that he be discharged with the issuance of a discharge under other than honorable conditions.

5.  The applicant was AWOL from 16 December 1981 through 7 August 1989 which was over 7 years.  It is more than reasonable to presume the discharge certificate issued to him on 28 February 1991 was erroneous in stating that his discharge was honorable.

6.  In view of the foregoing, the applicant's request should be denied.


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 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)                                         AR20090005994



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ABCMR Record of Proceedings (cont)                                         AR20100021106



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