IN THE CASE OF: BOARD DATE: 22 December 2009 DOCKET NUMBER: AR20090011921 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 characterized as under other than honorable conditions be upgraded. 2. The applicant states that he filed a Congressional Inquiry on his commander and the staff concerning their treatment of personnel in the 1st Battalion, 13th Field Artillery. Shortly thereafter, he was accused of a theft that he did not commit. The applicant states that he talked to the battalion commander about dismissing the charges, but the commander told him that he would be reduced to E-1, forfeit pay, and receive 6 months in confinement. He adds that he also talked to his Judge Advocate General (JAG) attorney and was told that he did not stand a chance of winning his case. Therefore, the applicant maintains he went absent without leave (AWOL). He concludes that he was accused of something he did not do and tried to resolve the situation without success. 3. The applicant provides a copy of his diploma, a disposition form, letters of appreciation/congratulations, certificates of training, and certificates of achievement. 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 record shows he enlisted in the Regular Army on 26 April 1974. He served 2 years, 9 months, and 12 days and reenlisted on 8 February 1977. 3. On 8 August 1977, the applicant successfully completed the Track Vehicle Mechanic Course. He also received a letter of appreciation for his outstanding performance as a platoon leader while attending this course. 4. A disposition form, dated 13 October 1978, shows that the executive officer formally recognized the applicant's superior performance of duty. 5. Certificates of training show that the applicant successfully completed the Army Maintenance Management Systems and the Troubleshooting Automotive Electrical Circuits and Utilization of Organizational Test Measurement and Diagnostic Equipment (TMDE) courses. 6. The three certificates of achievement show that the applicant successfully completed Steward Training, Dimensional Control Training, and the Employee Involvement Circle Leader Program. 7. On 9 March 1987, charges were preferred against the applicant for being AWOL from 18 June 1979 to 3 March 1987. 8. On 10 March 1987, the applicant consulted with his counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200. 9. The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be deprived of many or all Army benefits; and that he may expect to encounter substantial prejudice in civilian life because of discharge under other than honorable conditions. The applicant elected not to provide a statement on his behalf. 10. On 16 March 1987, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial. 11. The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under other than honorable conditions on 23 April 1987. The applicant had completed a total of 5 years, 3 months, and 14 days of creditable service with over 7 years of time lost due to AWOL. 12. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 13. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate. 14. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 15. 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 argues, in effect, that his discharge should be upgraded because he went AWOL based on being falsely accused of a theft after filing a Congressional Inquiry against his battalion commander and the staff. There is no evidence and the applicant has not provided any to substantiate his claim. Therefore, his contention that his being falsely accused of a theft led to his indiscipline is not sufficient as a basis for upgrading his discharge. 2. The applicant provides numerous documents that show he was formally recognized by his leadership for his outstanding achievements during his military training. The applicant's contentions regarding his achievements were considered. However, these achievements do not provide sufficient evidence that would warrant special recognition. 3. The applicant’s record of service shows over 7 years of lost time due to AWOL. Based on his record, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This lost time renders his service unsatisfactory and, therefore, he is not entitled to either 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) AR20090011921 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090011921 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1