IN THE CASE OF:	  

		BOARD DATE:	        21 August 2008

		DOCKET NUMBER:  AR20080005172 


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 an upgrade of his discharge. 

2.  The applicant states that his discharge should be upgraded in the interest of justice.  

3.  The applicant provides two character reference letters from his pastor and his assistant bishop in support of 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 records show he enlisted in the Regular Army for a period of 3 years on 4 December 1979.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 91B (Medical Specialist).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records further show he served in Germany from 8 April 1980 to 22 February 1982.  His awards and decorations include the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Good Conduct Medal.

4.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 6 August 1980, for failing to go to his appointed place of duty on or about 31 July 1980 and on or about 1 August 1980.  His punishment consisted of a forfeiture of $116.00 pay, 14 days of extra duty, and reduction to private (PVT)/E-1 (suspended for 90 days);  

	b.  on 25 August 1980, the imposing commander set aside so much of the applicant’s punishment in excess of a forfeiture of $104.00 pay and restored all his rights, privileges, and property affected; and 

	c.  on 27 August 1981, for being absent without leave (AWOL) during the period on or about 31 July 1981 through 10 August 1981.  His punishment consisted of reduction to the PV2/E-2, a forfeiture of $130.00 pay for 1 month, and 14 days of extra duty.  

5.  On 27 April 1982, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls on 27 May 1982.  He remained in that status until he surrendered to military authorities at Fort Campbell, Kentucky, on 17 June 1982. 

6.  On 21 June 1982, court-martial charges were preferred against the applicant for one specification of being AWOL during the period from on or about 27 April 1982 through 17 June 1982. 

7.  On 27 July 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested a discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

9.  On 28 July 1982, the applicant's immediate commander recommended approval of the applicant’s discharge with the issuance of a general discharge.  

10.  On 30 July 1982, the applicant’s intermediate and senior commanders recommended approval of the applicant’s discharge with the issuance of a general discharge.

11.  On 4 August 1982, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.   On 6 August 1982, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge shows that he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 2 years, 5 months, and 24 days of creditable active military service.

12.  An undated character reference letter written by the applicant’s pastor states that he has known the applicant for 6 years and that the applicant is a member of his parish.  The pastor also states that the applicant has grown morally and spiritually and became a dependable person.  

13.  A second character reference letter written by the assistant bishop states that he has known the applicant for 6 years and that he has seen the applicant grow tremendously over that time.  

14.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board’s 15-year statute of limitations.

15.  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, 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.

16.  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.

17.  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 contends that his discharge should be upgraded.

2.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on his repeated record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general or an honorable discharge.


BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__xxx___  __xxx___  __xxx___  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.



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      _______ _   _______   ___
               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)                                         AR20080005172



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ABCMR Record of Proceedings (cont)                                         AR20080005172



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