IN THE CASE OF:	  

		BOARD DATE:	        13 August 2008

		DOCKET NUMBER:  AR20080009561 


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 suffering from a mental condition at the time.

3.  The applicant provides the following additional documentary evidence in support of his application:

	a.  DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 21 January 1981.

	b.  Letter, dated 8 July 2002, substance abuse residential treatment.

	c.  Letter, dated 15 April 2002, completion of drug and alcohol rehabilitation program.

	d.  Letter, dated 25 July 2007, admittance to an outpatient clinic.

	e.  Letter, dated 20 August 2007, attendance at an outpatient clinic.

	f.  Letter, dated 11 June 2007, mental health therapy.

	g.  Letter, dated 15 April 2008, supplementary social security benefits.

	h.  Miscellaneous medical documents, dated on various dates in 1979.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests consideration of the applicant's petition for discharge upgrade.

2.  Counsel does not make a statement.

3.  Counsel does not provide any additional documentary evidence in support of the applicant's request.

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 17 September 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 16E (Hawk Fire Control Crewmember).  The highest rank/grade the applicant attained during his military service was private first class (PFC)/E-3.

3.  The applicant's records show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16) and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any significant acts or special recognition during his military service.

4.  On 8 July 1980, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful in language to his superior noncommissioned officer, on or about
29 June 1980.  His punishment consisted of forfeiture of $121.00 pay, reduction to PVT/E-1 (suspended for 90 days), 14 days of restriction, and 14 days of extra duty.


5.  On 5 August 1980, the U.S. Army Criminal Investigation Division Command (USACID) Resident Agency, Schweinfurt, Germany, was notified by a confidential informant that the applicant had contacted her (the informant) and told her that he could get any drugs she wanted.  The CID agent set up a buy of drugs from the applicant and another service member.  From this buy of drugs, court-martial charges of conspiring with another Soldier to sell and transfer marijuana, wrongfully selling marijuana in the hashish form, using marijuana, and wrongfully transferring marijuana, were read to the applicant on 4 November 1980.

6.  On 14 November 1980, the convening authority preferred the charges to a Special Court-Martial empowered to adjudge a bad conduct discharge.

7.  On 3 December 1980, 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 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 if his request for discharge is accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  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 an unknown date in December 1980, the applicant's immediate commander recommended approval of the applicant’s discharge with an Under Other Than Honorable Conditions Discharge Certificate.  

10.  On 6 January 1981, 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 and be reduced to the lowest enlisted grade.  On 21 January 1981, the applicant was discharged accordingly.  

11.  The DD Form 214 he was issued at the time shows he was discharged for the good of the service with service characterized as under conditions other than honorable.  This form further confirms the applicant had completed a total of 1 year, 4 months, and 5 days of creditable active military service.

12.  On 23 April 1982, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge. 

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 applicant's enrollment in a substance abuse residential treatment, completion of a drug and alcohol rehabilitation program, and mental health therapy, some 21 years after his discharge, are noted.  However, there is no evidence in the available records and the applicant did not submit any substantiating evidence that shows he suffered from a mental illness during his military service or that his serious misconduct was a result of the alleged mental illness. 
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, 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.  Based on his repeated 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.

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)                                         AR20080009561



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ABCMR Record of Proceedings (cont)                                         AR20080009561



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