IN THE CASE OF:	 

		BOARD DATE:	  15 October 2008

		DOCKET NUMBER:  AR20080001928 


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, that his under other than honorable conditions discharge be upgraded to a general, under honorable conditions discharge.

2.  The applicant states, in effect, that he is attempting to enlist in the California Army National Guard.  He has been informed that he is disqualified from enlisting due to the discharge code he received from the Army.

3.  In a self-authored, undated addendum he addressed “to whom it may concern,” the applicant states, in effect, due to nobody's fault, he missed a movement because he did not wake in time.  The unit sent a Soldier to knock on his door to see what his status was and that he was aware of his situation.  He states, to imagine his horror when he came to his wits and realized what he had done and what kind of trouble he was in.  Not to help the situation, the Soldier they sent to get him was continually telling him how bad a Soldier he was.  Telling him he was a "soup sandwich," a "terrible Soldier" and the topper that set him off was that he was "cancer to the Army."  He had gone too far and he let his emotions get the best of him.  A fight did ensue between him and the Soldier and although nobody was truly injured during the fiasco he was found to be at fault.  Both of the charges combined are the reason that he was unable to continue his career in the Army.  Not a day goes by that he does not regret the actions of that day.  He did and still has remorse for what he did to end his career in the military.


4.  The applicant continues his addendum to the Board by telling of his success in establishing several businesses in civilian life and the contributions he has made to the community through charitable contributions and the growth he has experienced personally.  He summarizes his request by asking the Board to allow him to get back to the camaraderie, honor, and disciplined lifestyle that he misses.

5.  In support of his request, the applicant submitted a copy of his DD Form 214, Certificate of Release or Discharge from Active Duty; and a copy of the correspondence he submitted to the Army Discharge Review Board (ADRB) in which he requested an upgrade of his discharge.

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 evidence shows the applicant enlisted in the U.S. Army Reserve on
7 August 1980.  He enlisted in the Regular Army on 25 June 1981.  He successfully completed basic combat and advanced individual training at Fort Gordon, Georgia.  On completion of his advanced training, he was awarded the military occupational specialty, 36K, Tactical Wire Operations Specialist.

3.  On 1 April 1982, the applicant was advanced to the rank and pay grade, Private First Class (PFC), E-3.  This would be the highest rank and pay grade he would attain while he served on active duty.  The record contains no documentary evidence of acts of valor or achievement which warrant special recognition.

4.  On 8 March 1984, the applicant received nonjudicial punishment, under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 4 March 1984, for willfully disobeying a lawful order from his superior noncommissioned officer on 
4 March 1984, and for making a false statement on 4 March 1984.  The imposed 
punishment was a reduction to the pay grade E-2 (suspended for 90 days), extra duty for 14 days, and a forfeiture of $100.00.  The applicant did not appeal the punishment. 

5.  On 13 April 1984, the suspension of the punishment of reduction to pay grade E-2 was vacated by reason of pending court-martial.

6.  On 13 April 1984, charges were preferred against the applicant for unlawfully grabbing and pushing another Soldier on the upper body with his hands and for committing an assault upon another Soldier by offering to cut him with a dangerous weapon likely to produce death or grievously bodily harm.

7.  Although the entirety of the applicant’s discharge request is not available for the Board's review, the evidence shows that on 24 April 1984, the applicant voluntarily submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200, Chapter 10.

8.  The available evidence shows the applicant stated he understood he could request discharge because charges had been preferred against him, which authorized the imposition of a bad conduct or dishonorable discharge.  He stated he had not been coerced with respect to his request for discharge and had been advised of the implications that were attached to it.

9.  Prior to completing his request for discharge for the good of the service, the applicant was afforded the opportunity to consult with counsel.  He consulted with counsel on 24 April 1984 and was fully advised of the nature of his rights under the UCMJ.  Although he was furnished legal advice, he stated that the decision to submit a request for discharge for the good of the service was his own.

10.  In his request for discharge, the applicant stated he understood he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He further stated, in effect, that he further understood that as a result of issuance of such a discharge he could be deprived of many or all Army benefits, that he would be ineligible for many or all benefits administered by the Veteran's Administration [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

11.  The applicant stated that he could expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge and after having been advised of the possible effects of such a discharge, he 
added he had personally made the choices indicated in his request for discharge.
12.  The applicant's chain of command unanimously recommended approval of his request for discharge for the good of the service, and on 2 May 1984, the approving authority, a major general, approved the applicant's request and directed that he be reduced to pay grade E-1 and furnished a discharge under other than honorable conditions.

13.  The applicant was discharged under other than honorable conditions, in the rank and pay grade, Private (PV1), E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service-in lieu of court-martial, on 10 May 1984.  On the date of his discharge, the applicant had completed 2 years,
10 months, and 16 days net active service with no time lost.

14.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  The applicant was notified on 15 November 1985 his request for an upgrade of his discharge had been denied since it was determined by the ADRB he had been properly and equitably discharged.

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit, at any time after the charges had been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge, with service characterized as under other than honorable conditions was normally considered appropriate, but the separation authority could direct a general discharge or an honorable discharge if such was merited by the Soldier's overall record and if the Soldier's record was so meritorious that any other characterization clearly would be improper.

16.  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 separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service, in lieu of trial by court-martial.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with 
a punitive discharge.  Procedurally, the applicant was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted guilt to the stipulated offense(s) under the UCMJ.

2.  The available evidence shows that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The characterization of service for this type of discharge was normally under other than honorable conditions and the evidence shows the applicant was fully aware of this prior to requesting discharge.  It is believed that the reason for discharge and the characterization of service are both proper and equitable.

3.  When the applicant was informed he had been charged and would be tried by court-martial for unlawfully grabbing and pushing another Soldier on the upper body with his hands and for committing an assault upon another Soldier by offering to cut him with a dangerous weapon likely to produce death or grievously bodily harm, he elected to seek discharge for the good of the service, in lieu of trial by court-martial.

4.  The applicant's entire record of service and the quality of his service were reviewed.  His record contains no documentary evidence of acts of valor or achievement that would warrant special recognition and an upgrade of his under other than honorable conditions discharge.  The highest rank and pay grade he achieved while he was in service was PFC, E-3.  The applicant's record shows he received non-judicial punishment under the UCMJ and a suspended reduction in pay grade was imposed.  The record shows that this suspended punishment to reduction was vacated due to his misconduct.  Neither the applicant's record nor service was considered to be sufficiently meritorious to warrant an upgrade of his discharge to general, under honorable conditions.

5.  In order to justify correction of a military record, the applicant must show, 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.

6.  In view of the foregoing, there is no basis for granting the applicant's request to upgrade his under other than honorable conditions discharge to a general discharge, under honorable conditions.





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)                                         AR20080001928



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ABCMR Record of Proceedings (cont)                                         AR20080001928



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