IN THE CASE OF:	   

		BOARD DATE:	  15 November 2011

		DOCKET NUMBER:  AR20110009694 


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 upgrade of his discharge.

2.  The applicant states the record is unjust because of his diligent and prompt service to the U.S. Army.

3.  The applicant provides no substantiating documents in support of his request.

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 19 May 1988.  He completed training and he was awarded military occupational specialty 16S (Man Portable Air Defense/Pedestal Mounted Stinger Crewmember).

3.  He served without a notable incident until on or about 7 July 1989 when he was reported absent without leave (AWOL) and subsequently dropped from the rolls (DFR) of his organization on 6 August 1989.

4.  On 3 January 1990, he was apprehended by civilian authorities and returned to military control at Fort McPherson, GA.  He was then transferred to the Special Processing Company, U.S. Army Personnel Control Facility, Fort Knox, KY pending disposition of his AWOL/DFR status.

5.  On 9 January 1990, court-martial charges were preferred against the applicant for being AWOL from 7 July 1989 to 2 January 1990.

6.  On 9 January 1990, having consulted with counsel, he voluntarily requested 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.  He indicated he understood the elements of the charge against him and admitted he was guilty of at least one offense or a lesser-included offense for which a punitive discharge was authorized.  He also acknowledged he would receive a discharge under other than honorable conditions.  He also understood he would be deprived of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Department of Veterans Affairs.  He stated he understood he could expect to encounter substantial prejudice in civilian life because of this discharge.

7.  He was placed on an indefinite excess leave status pending the final action on his voluntary request for discharge.

8.  On 18 January 1990, the applicant's immediate and intermediate commander recommended approval of his request for discharge with an under other than honorable conditions discharge.

9.  On 29 January 1990, 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 trial by court-martial.  He directed an under other than honorable conditions discharge and reduction to private (PV1)/E-1.

10.  On 6 March 1990, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he completed 1 year, 3 months, and
23 days of creditable active service with 180 days of time lost.


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

	a.  Army Regulation 635-200, 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.

	b.  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.

	c.  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 states the discharge should be upgraded because of his diligent and prompt service to the U.S. Army.

2.  The record shows he served less than half of his initial enlistment and he was AWOL for approximately 6 months.

3.  His voluntary request for discharge, even after appropriate consultation with a military lawyer, indicates he wished to avoid a trial by court-martial and the punitive discharge he could have received.

4.  The administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is no basis for granting the applicant's requested 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)                                         AR20110009694



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ABCMR Record of Proceedings (cont)                                         AR20110009694



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