IN THE CASE OF:	  

		BOARD DATE:	        05 AUGUST 2008

		DOCKET NUMBER:  AR20080007842 


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 discharge under other than honorable conditions be upgraded to an honorable discharge. 

2.  The applicant essentially states that he was told that if he got out, his discharge would be under other than honorable conditions, but that it would become honorable after 1 year.

3.  The applicant provides no additional 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.  The applicant's military records show that he enlisted in the Regular Army on 16 December 1974.  He completed basic and advanced individual training and was awarded military occupational specialty 63B (Wheeled Vehicle Mechanic).  His permanent duty assignments were at Fort Hood, Texas and in Germany.

3.  The applicant's military records also revealed a history of offenses and behavior that are incompatible with military service.  He was arrested by civil authorities in September 1975 on two counts of simple burglary.  He also accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) on at least four occasions for offenses such as being disrespectful in language towards his superior noncommissioned officer (NCO) on two occasions, willfully disobeying a lawful order from his superior NCO, failing to go at the time prescribed to his appointed place of duty, and absenting himself from his place of duty on three occasions.  His punishment for these offensives included two reductions in rank, forfeiture of $280.00, 28 days of extra duty, and 14 days of restriction.

4.  On 20 September 1977, the applicant was informed that charges were preferred against him for going without authority from his appointed place of duty, three counts of failing to go at the time prescribed to his appointed place of duty, absenting himself without authority from his unit on or about 15 August 1977, and remaining so absent until on or about 29 August 1977, absenting himself without authority from his unit on or about 1 September 1977, and remaining so absent until on or about 19 September 1977, wrongfully having in his possession a pipe containing residue, more or less, of marijuana, and for wrongfully using marijuana.  All of these offenses were punishable under the UCMJ with a punitive discharge.

5.  Also on 20 September 1977, the applicant voluntarily requested discharge for the good of the service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel), and understood that he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he was making his request of his own free will, and had not been subjected to coercion whatsoever by any person.  He also acknowledged that he had been advised of the implications that were attached to his request for discharge.  He further acknowledged that by submitting his request for discharge, he acknowledged that he was guilty of the charges against him or of lesser included offenses therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  Moreover, he stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.

6.  In his request for discharge, the applicant indicated that prior to completing his request for discharge, he had been afforded the opportunity to consult with appointed counsel for consultation, who fully advised him of the nature of his rights under the UCMJ; the elements of the offenses with which he was charged; including any relevant lesser included offenses thereto; and the facts that must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty; the possible defenses which appeared to be available at the time; and the maximum permissible punishment if he was found guilty.  The applicant also acknowledged that although he had been furnished legal advice, this decision was his own.

7.  The applicant also acknowledged that he understood that, if his request for discharge was accepted, he could be discharged under other than honorable conditions.  He further understood that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may be deprived of his rights and benefits as a veteran under both Federal and State Law.  He also understood that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  The applicant elected not to submit a statement in his own behalf.

8.  On 14 October 1977, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished a discharge certificate under other than honorable conditions.  He also essentially directed that the applicant be reduced in rank from private/E-2 to private/E-1.  On 25 October 1977, the applicant was discharged accordingly.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  The applicant essentially stated that he was told that if he got out, his discharge would be under other than honorable conditions, but that it would become honorable after 1 year.

11.  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.  A discharge under other than honorable conditions is normally considered appropriate.
12.  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.

13.  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 under other than honorable conditions should be upgraded to an honorable discharge. 

2.  The applicant's contention that he was basically told that his discharge under other than honorable conditions would become honorable after 1 year was rejected.  There has never been a provision of regulation which provided for an automatic upgrade of a discharge after a certain period of time after discharge.

3.  The evidence of record clearly shows that the applicant was charged with the commission of multiple offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, 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.

5.  Based on the applicant's extensive 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, he is not entitled to either an honorable or general 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.




      ___        XXX                ___
                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)                                         AR20080007842



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ABCMR Record of Proceedings (cont)                                         AR20080007842



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