IN THE CASE OF:	   

		BOARD DATE:	  27 February 2014

		DOCKET NUMBER:  AR20130009749 


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

2.  The applicant states his discharge was "changed" in 2008.  It says "honorable" in his permanent records.

3.  The applicant provides no additional evidence.

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 5 February 1987.  He completed one-station unit training.

3.  On 8 August 1990, charges were preferred against the applicant for being absent without leave (AWOL) during the period 20 March 1990 through 6 August 1990.

4.  On 8 August 1990 after consulting with counsel, the applicant voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  The applicant indicated he understood he could be discharged under other than honorable conditions, he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, and he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he might expect to encounter substantial prejudice in civilian life if such a discharge were issued to him.  With his request for discharge, the applicant also provided a memorandum wherein he acknowledged he had been advised by his defense counsel that the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial at the present time.  He also acknowledged that his counsel could not completely advise him without those records.  Nevertheless, he waived all defenses that may have become known.

5.  On 16 August 1990, the separation authority approved the applicant’s request for discharge and directed his discharge under other than honorable conditions.  He was accordingly discharged on 14 September 1990.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 3 years, 2 months, and 24 days of creditable active service with 136 days of lost time.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge or that his discharge was upgraded by any other official military board.

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

	a.  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’s request for an upgrade of his discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  Discharges under this chapter are due to a voluntary request for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on the applicant’s record which includes 136 days of AWOL, he clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.

4.  Additionally, the applicant argues that his discharge was previously upgraded in 2008.  There is no evidence the applicant previously applied to the Army Discharge Review Board or any other official military board for an upgrade of his discharge.  Absent such evidence there is no basis to this claim.

5.  Based on the foregoing, there is insufficient evidence to grant the relief requested.



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)                                         AR20130009749



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ABCMR Record of Proceedings (cont)                                         AR20130009749



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