IN THE CASE OF: BOARD DATE: 25 February 2010 DOCKET NUMBER: AR20090011797 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 his discharge under other than honorable conditions be upgraded. 2. The applicant states he was discharged for the good of the service under other than honorable conditions due to his failure to obey an order under the provisions of Article 91, Uniform Code of Military Justice (UCMJ). He states he was experiencing medical and family issues which could have resulted in a much different outcome at the discretion of the commander. He states his punishment was unduly harsh given the circumstances. 3. The applicant states his son (age 1 at the time) was having continuous seizures with high fevers and the doctors could not find the cause. He states his wife was trying to care for their son, a daughter (age 2 at the time), and work a full time job. He states all he was asking of his superior was to allow him the time to help care for his son to wellness in order to send him back to his home of record in St. Louis, MO. 4. The applicant states since his discharge he has helped his wife during her enlistment in the Army, attended school to become a licensed barber, and he is a substitute teacher. He states he is working towards a degree in education and he has been the coach for the high school basketball team for over 3 years. He states his free time is spent as a volunteer coach in basketball, baseball, football, a charitable foundation, and family activities. He states both his son and daughter are attending college. He states his post-service conduct and accomplishments are worthy of warranting an upgrade to the characterization of his service. 5. The applicant provides copies of letters from his spouse, a family member, employer, and personal references; his teaching certification; his certificate of completion from Central Texas College; five academic performance documents; his barber's license from Texas and Georgia; a negative police report; birth certificates; his marriage certificate; his Masonic membership; family photos; 39 pages from his military personnel records; and 32 pages from his military service medical records in support of his application. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. Counsel requests an upgrade of the applicant's discharge under other than honorable conditions. 2. Counsel states the applicant's post-service is commendable and he has proven to be an asset to his community. Counsel states the applicant was distracted from his responsibilities by the difficulties his family was experiencing at the time of his enlistment. 3. Counsel provides copies of documents that applicant had previously submitted with his application. 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 personnel records show he enlisted in the Regular Army on 27 July 1988 for a period of 4 years. He completed basic combat training and advanced individual training and was awarded military occupational specialty 11B (Infantryman). 3. On 9 November 1988, the applicant was assigned to Company B, 1st Battalion, 52nd Infantry, at Fort Irwin, CA. 4. The applicant's service medical records show he was treated during his period of service for pes valgus planus (flat feet) and pronation at the subtalor joint. 5. The applicant's complete separation processing package was not available for review. All of the facts and circumstances pertaining to the applicant's discharge are also not available. 6. On 21 September 1989, the applicant voluntarily requested discharge under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial. He acknowledged he was making this request because the charge of violation of Article 91 (failure to obey order) of the UCMJ had been preferred against him which authorizes the imposition of a bad conduct or dishonorable discharge. He acknowledged that he was making the request of his own free will, that he understood the elements of the offenses he was charged with, and that he was guilty of the offense with which he was charged. He further acknowledged that he was afforded the opportunity to speak with counsel prior to making his request. In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge. 7. A captain of the Judge Advocate General's Corps countersigned the applicant's statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of a discharge under other than honorable conditions if his request was approved, and of the procedures and rights available to him. 8. On 29 September 1989, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service. He had completed 1 year, 2 months, and 3 days of active service that was characterized as under other than honorable conditions. 9. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. The applicant submitted a statement from his sister wherein she attests to the serious illness of his son. She also stated the applicant's mother and his wife's mother were insisting that his son be sent to St. Louis for care. 11. The applicant submitted a statement from his wife wherein she attests to his volunteer work and the fact that he is a substitute teacher as well. She also states he guided their two children as well as others in achieving and accomplishing their goals. 12. The applicant submitted a statement from his employer who stated he is a highly motivated self-starter who will pursue his duties with an eye toward conveying a winning attitude. His employer stated he would recommend him to any learning institution where he is assigned. 13. The applicant submitted two letters containing character references from individuals who have known him for 3 to 10 years. These references attest to the applicant's patience, endurance, dedication, and to his being a person of real value. The references state he is a positive human being who strives to support and help young people. They state he is a hard worker and good provider for his family and a wonderful neighbor. 14. Army Regulation 635-200, in effect at the time, set forth the basic authority for the administrative separation of enlisted personnel. Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges had been preferred. The request must have included the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge. A discharge under other than honorable conditions was normally considered appropriate. 15. Army Regulation 635-200 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. 16. Army Regulation 635-200 also 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 contends his discharge should be upgraded because he was experiencing medical and family issues that were not taken into consideration at the time. He contends his punishment was too harsh given the circumstances. 2. In view of the fact that the applicant was not tried by court-martial, the applicant did not receive any punishment. Any medical and family issues he may have been experiencing at the time would have been considered had he gone to court-martial. He simply received the discharge he requested under the provisions of chapter 10 of Army Regulation 635-200. 3. The charge sheet that preferred the charges against the applicant was not available for review. Therefore, the exact circumstances surrounding the charge and the seriousness of the charge are not known. 4. The evidence available shows the applicant voluntarily requested a discharge, admitted his guilt, and acknowledged that he could receive an under other than honorable conditions discharge. 5. Although the applicant's complete separation packet was not available, it is presumed that the Army's administrative processing of the applicant for discharge was correct. The applicant has the burden of proving an error or injustice occurred by a preponderance of the evidence. 6. In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the known facts of the case. 7. The letters and documents submitted by the applicant were reviewed and the applicant's post-service achievements and conduct are noted. However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge. 8. The ABCMR does not upgrade a properly issued discharge solely based on the passage of time. 9. The applicant has not provided sufficient evidence to support changing the character of his service to that of honorable or general under honorable conditions. 10. 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 that 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) AR20090011797 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090011797 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1