IN THE CASE OF:	  

	BOARD DATE:	  15 July 2008

	DOCKET NUMBER:  AR20080007539 


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 gave the Army the best two years of his service.  He did more good than bad service. 

3.  The applicant did not provide additional documentary evidence in support of this 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.  On 23 April 1976, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 25 May 1976, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed training requirements and was awarded military occupational specialty 71L (Administrative Specialist).  He attained the grade of specialist four/E-4. 
 
3.  On 17 July 1978, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice for wrongful possession of a burnt spoon containing heroine residue.  His punishment consisted of a reduction to private first class/E-3 (suspended for 6 months), a forfeiture of $100.00 pay per month for 2 months, and 30 days of restriction and of extra duty.
 
4.  On 26 December 1978, the applicant was charged with 5 specifications of absent without leave (AWOL) for a total of 15 days; violating a lawful general regulation by purchasing rationed cigarettes in excess of the authorized maximum monthly individual ration allowance; escaping custody of a Military Police Customs Investigator; stealing $90.00, the property of the Army and Air Force Exchange (AAFES); forcefully stealing $21.00 from a private/E-1; and defrauding AAFES by falsely altering an AAFES Payroll Check.
 
5.  On 15 January 1979, after consulting with counsel, the applicant submitted a voluntary request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He submitted a statement indicating that he was an above average Soldier. 

6.  On 22 January 1979, the applicant was interviewed by the commander who indicated that the applicant's duty performance was characterized as satisfactory, but he had been involved in incidents of disrespect to an officer, disrespect to a warrant officer, and disorderly conduct in a public place.  All were minor in nature and were dealt with administratively by the command.  In December 1977, he was given a rehabilitative transfer due to inefficiency and suspected drug abuse. However, his performance in his new position was also less than satisfactory resulting in his relief from his position.  He characterized the applicant's service as less than honorable.

7.  On 24 January 1979, the separation authority approved the applicant's request for discharge and directed he be issued an under other than honorable conditions discharge. 

8.  Accordingly, the applicant was discharged on 5 February 1979, under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He was credited with2 years, 7 months, and 26 days of active duty service and had 15 days of lost time due to AWOL.  

9.  On 2 April 1981, the Army Discharge Review Board considered the applicant's request for an upgrade of discharge and unanimously denied his request.

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 submit a request for a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  Army policy states that although an honorable or general discharge is authorized, an UOTHC 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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.






DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant accepted NJP on one occasion, went AWOL on 5 occasions, and was charged with several serious offenses under the UCMJ.  He voluntarily elected to submit a request for separation in lieu of trial by court-martial.

2.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no evidence of procedural errors that jeopardized his rights.
In requesting a chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  

3.  The applicant's contention that he provided more "good than bad service" is not supported in his official record.  His unit commander relates that his service was considered less than honorable based on his many infractions of discipline, and that even after a rehabilitative transfer, his performance was considered unsatisfactory.

4.  Given the above, the applicant's service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  He has not provided any mitigating evidence to his lengthy record of misconduct.  Therefore, there is no justification to change the characterization of his service. 

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 did not submit any evidence that would satisfy this requirement.

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)                                         AR20080007539





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ABCMR Record of Proceedings (cont)                                         AR20080007539



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