BOARD DATE: 15 September 2011 DOCKET NUMBER: AR20110004921 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 general discharge. 2. The applicant states: * his record is not in error, the error was in his judgment * he is not making any excuses * he was young and made some bad excuses which he has paid for ever since 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 Army for 2 years and 23 weeks on 17 November 1993. He completed training as a petroleum supply specialist. 3. On 3 October 1995 the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 31 August 1995 until 30 September 1995. He acknowledged receipt of the notification on 5 October 1995. After consulting with counsel, he submitted a 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. In his request for discharge, he elected not to submit a statement in his own behalf and he acknowledged he understood the following: * if his request for discharge was accepted, he could be discharged under other than honorable conditions * as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits * he could be ineligible for many or all benefits administered by the VA * he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge 4. The appropriate authority approved the request for discharge on 11 December 1995. On 8 January 1996, the applicant was discharged under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. He had completed 2 years and 22 days of net active service this period. 5. A review of the available records does not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 6. Army Regulation 635-200 (Personnel Separations) 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. 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. 7. Paragraph 3-7b of Army Regulation 635-200 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 contentions have been noted. 2. Youth and/or immaturity are not sufficient justifications to warrant an upgrade of his discharge. His records show that charges were pending against him for being AWOL from 31 August 1995 until 30 September 1995. Rather than stand trial by court-martial he elected to be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial. 3. In accordance with the applicable regulation, a discharge under other than honorable conditions is normally considered appropriate. 4. In view of the foregoing, the applicant’s request should be denied. 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) AR20090005994 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110004921 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1