IN THE CASE OF:	  

		BOARD DATE:	        14 August 2008

		DOCKET NUMBER:  AR20080006635 


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 he was a young and immature Soldier at the time and that his discharge does not reflect his character or service, as evidenced by his award of the Army Achievement Medal.  He desires to serve his country again and asks for another chance.

3.  The applicant provided a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 22 August 1985, 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 that he was born on 10 June 1965 and enlisted in the Regular Army at the age of 18 for a period of 4 years on 7 July 1983.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained during his military service was private first class (PFC)/E-3.

3.  The applicant’s records further show he served in Germany from 30 October 1983 to 21 August 1985.  His awards and decorations include the Army Service Ribbon, the Overseas Service Ribbon, the Army Achievement Medal, the Marksman Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts of distinction during his military service.

4.  On 27 April 1985, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana on or about 18 December 1984 and for being absent without leave during the period on or about 1 April 1985 through on or about 4 April 1985.  His punishment consisted of reduction to private (PV2)/E-2, forfeiture of $162.00 pay for one month, 14 days of restriction, and 14 days of extra duty.  

5.  On 8 May 1985, the applicant departed his unit in an AWOL status and was subsequently dropped from the Army rolls (DFR) on 6 June 1985.  He surrendered to military control at his unit in Germany on 13 June 1985.

6.  On 13 June 1985, Court-Martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 8 May 1985 through on or about 13 June 1985; one specification of willfully disobeying a lawful order from a noncommissioned officer, on or about 11 May 1985; one specification of wrongfully using marijuana, on or about 8 April 1985; and one specification of breaking restriction, on or about 8 May 1985.

7.  On 13 July 1985, 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 Uniform Code of Military Justice (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 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 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 23 July 1985, the applicant’s immediate commander remarked that the applicant’s offenses were sufficiently serious enough to warrant elimination from the Army and that the applicant had no rehabilitative potential.  He further recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate. 

10.  On 23 July 1985, the applicant’s intermediate and senior commanders echoed the immediate commander’s remarks and further recommended approval of the request for discharge with an Under Other Than Honorable Conditions Discharge Certificate.

11.  On 1 August 1985, 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.  He ordered the applicant’s immediate reduction to the lowest enlisted grade and directed he receive an Under Other Than Honorable Conditions Discharge Certificate.  On 21 August 1985, he was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with an under other than honorable conditions character of service.  This form further confirms the applicant had completed a total of 2 years and 11 days of creditable active military service and had 36 days of lost time. 

12.  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.

13.  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.

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 contends that his discharge should be upgraded.

2.  The evidence of record shows that the applicant was 18 years of age at the time of his enlistment and nearly 20 years of age at the time of his offense.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service. Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his act of misconduct was the result of his age.

3.  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.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to substantiate an upgrade of his discharge.  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 did not submit evidence that would satisfy that requirement.  Based on his record of indiscipline, the applicant's service clearly does 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. 

5.  The Army Board for Correction of Military Records (ABCMR) does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  The applicant is advised that if he desires to enlist, he should contact a local recruiter who can best advise him on his eligibility for returning to military service.  Those individuals can best advise a former service member as to the needs of the service at the time and may process enlistment waivers applicants.

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)                                         AR20080006635



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ABCMR Record of Proceedings (cont)                                         AR20080006635



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