IN THE CASE OF:	  

	BOARD DATE:	  10 July 2008

	DOCKET NUMBER:  AR20080007014 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states, in effect, that he should have not been reduced in rank and grade from Staff Sergeant (SSG)/E-6 to Private (PVT)/E-1.  The military took too much rank.  It was first time he had gotten into trouble and he feels it was unjust. The applicant states after giving 10 years of his life to the military he does not have Veterans Affairs benefits.

3.  The applicant states that he provided Request Number 1-3706199383; however, the document is not available.

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 25 June 1974 and successfully completed basic training and advanced individual training.  He was awarded military occupational specialty (MOS) 74B (Card and Tape Writer).  The applicant was later awarded MOSs 63H (Automotive Repairman) and 11B (Infantryman).

3.  The applicant was honorably discharged on 2 June 1977 and immediately reenlisted on 3 June 1977.  He was honorably discharged on 20 May 1980 and immediately reenlisted on 21 May 1980.  He was honorably discharged on 4 April 1982 and immediately reenlisted on 5 April 1982.

4.  On 26 July 1982, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty.

5.  On 8 July 1983, the applicant was promoted to the rank of SSG.

6.  A DD Form 458 (Charge Sheet), dated 19 September 1984, shows charges were preferred against the applicant for dereliction in the performance of his duties, possession of marijuana, use of marijuana, possession of cocaine, use of cocaine, and adultery.

7.  On 2 October 1984, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions; that he may 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 be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life.  He waived the right to provide statements on his own behalf.
  
8.  On 5 October 1984, the appropriate authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  He directed that the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  On 25 October 1984, the applicant was discharged with a characterization of service of under other than honorable conditions.  The applicant had completed a total of 10 years, 4 months, and 1 day of creditable active service with no lost time.


9.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 22 April 1987, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the reason for discharge and characterization of his discharge was proper as under other than honorable conditions.

10.  Army Regulation 635-200 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.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. An under other than honorable conditions discharge is normally considered appropriate.

11.  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.

12.  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.

13.  Army Regulation 600-8-19 prescribes policies and procedures governing promotion and reduction of Army enlisted personnel.  In pertinent part, it states that when the separation authority determines that a Soldier is to be discharged from the Service under other than honorable conditions, the Soldier will be reduced to the lowest enlisted grade.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's records show that he was charged with dereliction in the performance of his duties, possession of marijuana, use of marijuana, possession of cocaine, use of cocaine, and adultery.  Based on these facts, the applicant’s service during his last enlistment clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for issuance of an honorable or general discharge.

2.  The applicant further contends that he should have been reduced only one grade.  However, the separation authority approved his request for discharge for the good of the service in lieu of trial by court-martial and he was issued an Under Other Than Honorable Conditions Discharge Certificate.  In accordance with Army Regulation 600-8-19, this mandated that he be reduced to the lowest enlisted grade.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's separation was accomplished in compliance with applicable regulation and without procedural errors that would jeopardize his rights.  Therefore, it is concluded that the characterization of the applicant’s discharge was proper and equitable.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  __xx  __  __xx  ___  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.




      ____xxxxxx____
       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)                                         AR20080007014





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ABCMR Record of Proceedings (cont)                                         AR20080007014



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