IN THE CASE OF:	

		BOARD DATE:	  26 April 2011

		DOCKET NUMBER:  AR20100025449 


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, that his discharge under other than honorable conditions be upgraded to an honorable discharge. 

2.  The applicant states, in effect, that after serving honorably for 4 years he reenlisted and began to suffer from depression and did not know how to deal with it so he went absent without leave (AWOL).  However, now he is undergoing treatment at a Department of Veterans Affairs (VA) hospital and he believes that he should have two honorable discharges due to the depression.  He also states he loved the military, it is one of the best things that he has ever done, and that he wanted to make it a career.

3.  The applicant provides:

* A one-page statement explaining his application
* Three unauthenticated third-party character references
* 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.  The applicant was born on 7 August 1963 and served in the Regular Army (RA) as a cannon crewman from 31 March 1982 until he was honorably released from active duty (REFRAD) in the rank of sergeant on 30 March 1986 due to the expiration of his term of service.

3.  On 9 July 1986, he again enlisted in the RA in pay grade E-4 for a period of 
3 years.  He was initially assigned to Fort Lewis, Washington and promoted to the rank of sergeant on 7 August 1987. 

4.  On 13 October 1987, he was transferred to Babenhausen, Germany for assignment to an artillery battery, initially as a gunner, and in September 1988 he was assigned as the Nuclear, Biological, and Chemical Noncommissioned Officer.  

5.  The applicant was granted 25 days of ordinary leave from 5 December to 30 December 1988.  However, he did not return from leave and he was reported in an AWOL status effective 31 December 1988.  He remained absent in a desertion status until he surrendered to military authorities at Fort Benjamin Harrison, Indiana on 13 September 1989.  He was transferred to Fort Knox, Kentucky where charges were preferred against him for his absence.

6.  On 25 September 1989, after consulting with defense counsel, the applicant submitted a request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), for the good of the service in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected not to submit a statement or explanation in his own behalf.



7.  On 10 October 1989, the appropriate authority approved his request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  Accordingly, on 30 November 1989, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He had served 2 years, 8 months, and 9 days of active service during his current enlistment and he had 256 days of lost time due to being AWOL.

9.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

10.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

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.  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 voluntary 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 administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the length of his absence, the lack of mitigating circumstances at the time, and especially due to his rank at the time.  His service simply does not rise to the level of honorable or under honorable conditions.

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)                                         AR20100025449





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ABCMR Record of Proceedings (cont)                                         AR20100025449



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