IN THE CASE OF:	 

	BOARD DATE:	21 August  2008  

	DOCKET NUMBER:  AR20080007556 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, that he asked if he could get out of the Army early to take care of his grandparents because his grandmother was bedridden and he was the only working male in his family, except for his grandfather who was at the age of retirement, but was dying of liver failure.  The applicant also states that the Army said yes to his request and told him that he could upgrade his discharge to an honorable discharge after 6 months; however, this never happened.  The applicant further states this is the only blemish in his records during his entire military career and concludes by adding that he applied for a government job, met all qualifications, but believes his discharge kept him from getting the position.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), with an effective date of 26 April 1985.

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's military service records show that he was inducted into the Army of the United States and entered active duty on 28 June 1972.  Upon completion of basic combat training and advanced individual training, he was awarded military occupational specialty (MOS) 15D (Lance Missile Crewman).  He was honorably discharged on 27 June 1974 for the purpose of immediate reenlistment and continued to serve on active duty in the Regular Army (RA).  The applicant served overseas in U.S. Army Europe (USAREUR) in Germany from 1 August 1975 to 27 August 1978 and again from 21 July 1979 to 15 July 1981.  The applicant was promoted to the rank of sergeant first class (SFC)/pay grade E-7, with a date of rank of 30 December 1982, and he was reassigned overseas to USAREUR in Germany on 7 April 1983.

3.  The applicant’s military service records contain a DD Form 214 (Report of Separation from Active Duty) that shows he entered active duty on 28 June 1972 and was honorably discharged on 27 June 1974 for the purpose of immediate reenlistment.  At the time, he was credited with completing 2 years, 0 months, and 0 days net active service this period.

4.  The applicant’s military service records contain a DD Form 214 (Report of Separation from Active Duty) that shows he entered active duty on 28 June 1974 and was honorably discharged on 2 July 1979 for the purpose of immediate reenlistment.  At the time, he was credited with completing 5 years, 0 months, and 5 days net active service this period; 2 years, 0 months, and 0 days prior active service; and 7 years, 0 months, and 5 days total active service.

5.  The applicant's military service records contain a DA Form 4187 (Personnel Action), dated 1 November 1984, that shows the applicant’s duty status was changed from present for duty (PDY) to absent without leave (AWOL), effective 0800 hours, 27 October 1984.

6.  The applicant's military service records contain a DA Form 4304-R (Commander’s Report of Inquiry/Unauthorized Absence), dated 1 November 1984, that shows the applicant’s commander documented his inquiry into the applicant’s absence.  Item 7 (Possible Contributing Factors Causing AWOL) shows that the commander placed a checkmark in the “Marital Strife” block and entered in the “Remarks” section, “possibility that wife ask (sic) for a uncontested divorce approximately three weeks ago (early Oct 84).  Wife is currently living in States.  Wife also due to deliver child in November 1984.  Told SGT M_____ he felt he was going to be written up on fraternization.”

7.  The applicant's military service records contain a DA Form 4187, dated
26 November 1984, that shows the applicant’s duty status was changed from AWOL to dropped from rolls (DFR), effective 0800 hours, 25 November 1984.

8.  The applicant's military service records contain a DA Form 4187, dated
28 February 1985, that shows the applicant’s duty status was changed from DFR to attached (ATCH), returned to military control (RMC), effective 0001 hours,
19 February 1985.

9.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 19 February 1985, that shows the captain serving as Commander, Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, preferred charges against the applicant, in that he did, on or about
27 October 1984, without authority, absent himself from his unit, to wit:
1st Battalion, 333rd Air Defense Artillery, located at Weisbaden, Germany, and remained absent until on or about 19 February 1985.

10.  On 22 February 1985, the applicant requested a discharge for the good of the Service under the provisions of Chapter 10 of Army Regulation 635-200.  The applicant acknowledged with his signature that he had been advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, or a discharge under other than honorable conditions, if the request is approved; of the effects of the request for discharge; and the procedures and rights available to the applicant.  

11.  The applicant signed his request for discharge which showed that he was making the request under his own free will and had not been subjected to any coercion whatsoever by any person; that he acknowledged guilt to the offenses charged; that he was afforded the opportunity to consult with counsel; that he was advised he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate; 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 law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  In addition, the applicant acknowledged in his request, “I further understand that there is no automatic upgrading nor review by any government agency of a less than honorable discharge and that I must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records if I wish review of my discharge.  I realize that the act of consideration by either board does not imply that my discharge will be upgraded.”

12.  On 27 March 1985, the captain serving as Commander, Personnel Control Facility, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, recommended approval of the applicant’s request for discharge for the good of the Service.  The commander’s recommendation was based on the applicant’s 115 days of AWOL and pending trial for an offense punishable by a Bad Conduct or Dishonorable Discharge.  The commander documented that the applicant cited personal reasons and his having become disillusioned with the military as the reasons for his AWOL.  The commander recommended that the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 29 March 1985, the Commander, Headquarters Commandant Command, U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, concurred with the applicant’s request for discharge for the good of the Service and also recommended the applicant be issued a discharge under other than honorable conditions.

14.  On 3 April 1985, the brigadier general serving as Acting Commander,
U.S. Army Field Artillery Center and Fort Sill, Fort Sill, Oklahoma, approved the applicant’s request for discharge under the provisions of Army Regulation
635-200, Chapter 10, for the good of the Service with an Other Than Honorable Conditions Discharge Certificate.  The commander also directed the immediate reduction of the applicant to the lowest enlisted grade.

15.  The applicant's military service records contain a copy of his DD Form 214 that shows he was discharged on 26 April 1985, under other than honorable conditions, in accordance with the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service.

16.  The applicant’s military service records are absent any evidence that he submitted a request for ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal reasons (i.e., for the care and assistance of his grandparents or due to an impending divorce).

17.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

18.  The applicant’s military service records contain a DD Form 293 (Application for Review of Discharge or Separation from the Armed Forces of the United States), received on 14 August 1986, that shows the applicant requested upgrade of his under other than honorable conditions discharge to an honorable discharge.  On 20 May 1987, the Army Discharge Review Board (ADRB), after careful consideration of the applicant’s military records and all other available evidence, determined that the applicant’s discharge was proper and equitable. Accordingly, the ADRB denied the applicant’s petition to upgrade his discharge.

19.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration of term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of the Personnel Separations regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

20.  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.

21.  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.

22.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

23.  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.  The U.S. Court of Appeals, observing that applicants to the Army Discharge Review Board (ADRB) are by statute allowed 15 years to apply there, and that this Board's exhaustion requirement (Army Regulation 15-185, paragraph 2-8), effectively shortens that filing period, has determined that the
3 year limit on filing to the Army Board for Correction of Military Records (ABCMR) should commence on the date of final action by the ADRB.  In complying with this decision, the ABCMR has adopted the broader policy of calculating the 3-year time limit from the date of exhaustion in any case where a lower level administrative remedy is utilized.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded to an honorable discharge because he asked Army officials for permission to care for his grandparents, Army officials approved his request for discharge, and also advised him that he could upgrade his discharge to an honorable discharge after 6 months.

2.  There is no evidence that the applicant submitted a request for ordinary leave, request for emergency leave, request for compassionate reassignment, or request for hardship discharge based on personal reasons (i.e., for the care and assistance of his grandparents or due to an impending divorce).  There is also no evidence of record that Army officials denied such a request.

3.  The evidence of record shows that the applicant requested a discharge for the good of the Service in lieu of trial by court-martial (emphasis added) and that the appropriate separation authority approved the applicant’s request for discharge. The evidence of record also shows that the applicant acknowledged 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 law; and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The evidence of record further shows the applicant acknowledged that he understood that there is no automatic upgrading or review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board or the Army Board for Correction of Military Records for review of his discharge. Moreover, the evidence of record shows that the applicant acknowledged that the act of consideration by either board did not imply his discharge will be upgraded.

4.  The evidence of record shows that the applicant applied to the ADRB and requested upgrade of his under other than honorable conditions discharge to an honorable discharge on 14 August 1986 and, on 20 May 1987, the ADRB determined that the applicant’s discharge was proper and equitable.  Thus, the evidence of record confirms the applicant’s claim that he could request upgrade of his discharge after 6 months.  However, the evidence of record also confirms that consideration of his request by the ADRB (or ABCMR, in this case) did not imply that his discharge would be upgraded.

5.  There is no U.S. Army regulation or policy that automatically changes the character of service of a former service member's discharge.  In addition, there is no evidence of record that shows the applicant was advised that his discharge under other than honorable conditions would be changed to an honorable discharge 6 months after his discharge from the U.S. Army.  Therefore, the evidence of record fails to substantiate the applicant's claim that his discharge under other than honorable conditions would be changed to an honorable discharge 6 months after his discharge from the U.S. Army.

6.  The evidence of record shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  Lacking evidence to the contrary, it is determined that all requirements of law and regulations were met, the rights of the applicant were fully protected throughout the separation process, and the appropriate discharge certificate was furnished.

7.  The evidence of record shows that the applicant’s military service records document his periods of honorable service from 28 June 1972 through 27 June 1974 and from 28 June 1974 through 2 July 1979.  The evidence of record also shows that subsequent to 2 July 1979, the applicant had 115 days of lost time and this period of service was characterized as under other than honorable conditions.  Thus, the evidence of record shows that the applicant’s record of service during the period of service under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

8.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20080007556



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ABCMR Record of Proceedings (cont)                                         AR20080007556



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