IN THE CASE OF:	  

		BOARD DATE:	       17 September 2008 

		DOCKET NUMBER:  AR20080011720 


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 discharge under other than honorable conditions be upgraded.  

2.  The applicant states, in effect, that because of an incident in 1985 his military counsel advised him to accept a discharge under other than honorable conditions.  He contends that being naïve and with little or no understanding of military law he accepted the offer without getting a second opinion, which he later regretted.  He states that he left his post in Germany and entered the Netherlands without a pass and that he was detained in the Netherlands until military police picked him up.  To his knowledge no crime was committed and there was no major violation of military law.  He states that upgrading his discharge would enhance his chances of being considered for employment by civilian contractors.      

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and an official transcript for the General Equivalency Diploma. 

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 was born on 14 October 1961.  He enlisted on 30 July 1979 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 13B (cannon crewman).  He was honorably discharged on 1 June 1982 for immediate reenlistment.  He reenlisted on 2 June 1982 for a period of 4 years.                    

3.  On 3 August 1982, nonjudicial punishment was imposed against the applicant for failing to go to his appointed place of duty at the time prescribed.  His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay, restriction, and extra duty.  On 13 September 1982, the suspended portion of the sentence was vacated. 

4.  On 28 December 1983, nonjudicial punishment was imposed against the applicant for using cocaine.  His punishment consisted of a reduction to E-3 and a forfeiture of pay.

5.  On 22 August 1984, nonjudicial punishment was imposed against the applicant for two specifications of failing to go to his appointed place of duty at the prescribed time.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

6.  The facts and circumstances surrounding the applicant’s discharge process and the charge sheet are not contained in the available records.  However, on 
9 May 1985, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.   

7.  On 6 June 1985, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 12 August 1985 under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial.  He had served a total of 6 years and 13 days of active service.

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

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 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.

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.  

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.  Age is not a sufficiently mitigating factor.  The applicant was 23 years old when he voluntarily requested discharge in lieu of trial by court-martial.  

2.  A discharge is not upgraded for the purpose of obtaining employment opportunities.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  __xx____  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.


      _______xxxx _______   ___
               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)                                         AR20080011720



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080011720



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1