BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100029848 


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 fully honorable discharge.

2.  The applicant states, in effect, that he was an alcoholic before he enlisted and alcoholism caused his problems after he enlisted in the Army.  He goes on to state that he became disillusioned during a peace-time Army and alcohol drained his discipline and desire to be a Soldier.  He further states that he has been sober since 15 July 1995 and he has attempted to turn his life around.  He also states that he was denied a job with the Military Sealift Command because of his discharge and that he desires to have it upgraded so that he can serve on ships that serve our troops as a means to make up for not fulfilling his contract with the Army.

3.  The applicant provides:

* A three-page letter explaining his application
* A copy of a Certificate of Achievement
* Copies of documents showing he was accepted for a position in the Military Sealift Command and the offer was rescinded due to his discharge
* Seven third-party character references





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 28 October 1957 and enlisted in the Regular Army in Brooklyn, New York on 28 April 1986 for a period of 3 years, training as a cannon crewman and airborne training.  He completed one-station unit training at Fort Sill, Oklahoma and airborne training at Fort Benning, Georgia before being transferred to Fort Bragg, North Carolina on 18 September 1986.  He was advanced to the pay grade of E-3 on 1 December 1986.

3.  The applicant left his unit in an absent without leave (AWOL) status from 
24 August to 26 August 1987 and from 9 September 1987 to 4 January 1989 until he was apprehended by civil authorities in Portugal and returned to military control at Fort Dix, New Jersey.  Charges were preferred against him on 
6 January 1989.

4.  After consulting with defense counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and 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 declined to submit a statement or explanation in his own behalf and he declined a separation medical/physical examination.

5.  On 5 February 1989, the appropriate authority approved his request for discharge with the issuance of an under other than honorable conditions discharge.

6.  Accordingly, on 23 February 1989, he 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 with an under other than honorable conditions discharge.  He completed 1 year, 5 months, and 29 days of total active service and had he 483 days (1 year, 3 months and 28 days) of lost time due to being AWOL.  He was 31 years of age at the time of discharge.

7.  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.

8.  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.

9.  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.

10.  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 and third party letters of support have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the extensive length of his absence, his age at the time, his undistinguished record of service, and the absence of mitigating circumstances at the time.  His service simply did not rise to the level of a general or an honorable discharge.

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)                                         AR20100029848



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ABCMR Record of Proceedings (cont)                                         AR20100029848



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