IN THE CASE OF:	  

		BOARD DATE:	       23 October 2008	

		DOCKET NUMBER:  AR20080012302 


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, an upgrade of the character of service of his discharge.

2.  The applicant states, in effect, he was promised training as a mechanized infantryman, but was trained as an infantryman and “ended up as a grunt,” which constitutes a breach of his enlistment contract.  He also states that he needs his discharge upgraded in order to get benefits.

3.  The applicant provides no additional documentary evidence.

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 service records contain a DD Form 1966-Series (Application for Enlistment - Armed Forces of the United States), dated
13 January 1978.  Section VII (Enlistment Options), “Specific Options Enlisted For” shows the applicant enlisted for the H-13 U.S, Army Combat Arms Enlistment Option - Europe and military occupational specialty (MOS) 11B10 (Infantryman) training option.  This document also shows that both the applicant and U.S. Army recruiter placed their signatures on the document.

3.  The applicant's military service records contain a DD Form 4-Series (Enlistment or Reenlistment Agreement - Armed Forces of the United States), dated 13 January 1978, with allied documents that, in pertinent part, include a DA Form 3286-13 (Statement for Enlistment), Annex A, dated 13 January 1978.
The DD Form 4 shows that the applicant enlisted in the U.S. Army and entered active duty for a period of 3 years on 13 January 1978.  Section II (Agreements), Item 10a (For enlistment or reenlistment in a Regular component), states “[t]he additional details of my obligations under this agreement, if any, are as provided in Annex ‘A’ attached hereto.”  The DD Form 4 shows that both the applicant and enlisting officer placed their signatures on the document.  The DA Form 3286-13 (Annex A), Item 1 (Acknowledgement) states, “[i]n connection with my enlistment in the Regular Army for the U.S. Army Combat Arms Unit/Area of Choice Enlistment Option, I hereby acknowledge that:  a. Upon successful completion of training, and provided I meet required prerequisites, I will be assigned to the following unit:  US Army Europe;” and “b. [p]roviding I meet required prerequisites, I will be trained in ‘11B10’.”  The DA Form 3286-13 also shows that both the applicant, U.S. Army guidance counselor, and a witness placed their signatures on this document on 13 January 1978.

4.  The applicant's military service records contain a copy of Headquarters, Armed Forces Examining and Entrance Station, Los Angeles, Los Angeles, California, Enlistment/Travel Order Number 9-24, date 13 January 1978.  This order, in pertinent part, shows the applicant was to report to Fort Leonard Wood, Missouri on 14 January 1978 and then report to Fort Benning, Georgia for training in military occupational specialty (MOS) 11B (Infantryman).

5.  The applicant's military service records contain a copy of Headquarters,
U.S. Army Infantry Training Center, Fort Benning, Georgia, Orders 90-1, dated 10 May 1978.  These orders show, in pertinent part, that the applicant was awarded MOS 11B1O (Infantryman), effective 8 June 1978.

6.  The applicant's military service records contain a DA Form 2-1 (Personnel Qualification Record):

     a.  Item 6 (Military Occupational Specialties) shows he was awarded primary MOS 11B1O (Infantryman) on 8 June 1978.

     b. Item 17 (Civilian Education and Military Schools), in pertinent part, shows the applicant completed the 7-week Infantryman (11B) course at U.S. Army Training Center (Fort Benning, Georgia) in 1978.

     c.  Item 35 (Record of Assignments), in pertinent part, shows the applicant was assigned to C Battery, 3rd Battalion, 84th Field Artillery (Germany) from
17 July 1978 to 30 November 1978.

7.  The applicant’s military service records contain a DA Form 2627 (Record of Proceedings Under Article 15, UCMJ [Uniform Code of Military Justice]), dated
11 April 1978.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, having received a lawful order from his superior noncommissioned officer (NCO) to go to the Truman Education Center, Fort Leonard Wood, Missouri, the applicant did, on or about 1350 hours, 10 April 1978, willfully disobey the same; in violation of Article 91, UCMJ.  The punishment imposed was a forfeiture of $92.00 per month for 
1 month and 7 days in the Correctional Custody Facility.

8.  The applicant’s military service records contain a DA Form 2627, dated
30 May 1978.  This document shows that nonjudicial punishment was imposed by the battalion commander against the applicant for, having received a lawful order from his superior NCO to get his gear and bring it to the Range shack, the applicant did, on or about 2000 hours, 10 May 1978, willfully disobey the same; in violation of Article 91, UCMJ, and for at 2135 hours, 10 May 1978, wrongfully communicating a threat to another Soldier; in violation of Article 134, of the UCMJ.  The punishment imposed was a forfeiture of $150.00 per month for 
2 months and 30 days of restriction to the battalion area.

9.  The applicant’s military service records contain a DA Form 2627, dated
28 August 1978.  This document shows that nonjudicial punishment was imposed by the company commander against the applicant for, having received a lawful order from his superior NCO to take his hands out of his pockets, the applicant did, on or about 0730 hours, 14 August 1978, willfully disobey the same; in violation of Article 91, UCMJ, and for on or about 0730 hours, 14 August 1978, being disrespectful in language toward his superior NCO; in violation of Article 91, UCMJ, both offenses occurring on a U.S. military kaserne outside the territorial limits of the United States.  The punishment imposed was reduction to private (E-1), suspended for a period of 30 days; a forfeiture of $92.00 per month for 1 month, suspended for 30 days; 14 days of extra duty; and 14 days of restriction.
The DA Form 2627 also shows the suspension of the punishments of reduction to E-1 and forfeiture of pay imposed against the applicant were vacated by the commander and the unexecuted portions of the punishment were ordered duly executed on 16 September 1978.

10.  The applicant's military service records contain a DD Form 458 (Charge Sheet), dated 10 October 1978.  This document shows that the major serving as Commander, C Battery, 3rd Battalion, 84th Field Artillery (Germany), preferred court-martial charges against the applicant for:  Charge I, violation of Article 86 of the UCMJ, with 19 specifications; Charge II, violation of Article 91 of the UCMJ, with 1 specification; Charge III, violation of Article 92 of the UCMJ, with
5 specifications; and Charge IV, violation of Article 115 of the UCMJ, with
2 specifications.

11.  On 19 October 1978, the applicant requested a discharge for the good of the Service in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200.  On that date, the applicant's legal counsel certified that he had advised the applicant of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge, of the effects of the request for discharge, and the rights available to the applicant.

12.  The applicant signed his request for discharge which showed that he was making the request under his own free will and acknowledged guilt to the offenses charged or lesser included offense(s) therein contained; that he was afforded the opportunity to speak with counsel; that he was advised he may be furnished a separation under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; that he may be deprived of his rights and benefits as a veteran under both Federal and State law; and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable discharge.

13.  On 24 October 1978, the major serving as Commander, C Battery,
3rd Battalion, 84th Field Artillery (Germany) recommended disapproval of the applicant’s request for discharge from the U.S. Army under the provisions of chapter 10, Army Regulation 635-200.  The commander stated that due to the seriousness and nature of the offenses committed by the applicant, he felt the applicant should not be administratively discharged, but tried by court-martial.



14.  On 3 November 1978, the lieutenant colonel serving as Commander,
U.S. Military Community Heilbronn (Germany) recommended disapproval of the applicant’s request for discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  The commander stated that the applicant violated the rules and regulations of the U.S. Army and should be tried by court-martial.

15.  On 6 November 1978, the colonel serving as Commander, Heilbronn Community Command (Provisional) (Germany), having considered the recommendations of the subordinate commanders and the court-martial case against the applicant, recommended approval of the applicant’s discharge from the U.S. Army under the provisions of chapter 10 of Army Regulation 635-200.  The commander’s recommendation was based on the applicant’s punishment under Article 15 and current court-martial charges (noting that all of the offenses were military-related), the applicant’s actions demonstrating no rehabilitative potential, and the commander’s belief that the applicant would be of no further benefit to the U.S. Army or any other military unit.  The commander added that, due to the nature of the offenses, he recommended the applicant be given a discharge under other than honorable conditions.

16.  On 15 November 1978, the lieutenant general serving as Commander,
VII Corps (Germany), approved the applicant’s request for discharge under the provisions of chapter 10 of Army Regulation 635-200, with Separation Program Designator (SPD) Code “JFS,” and directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

17.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 4 December 1978, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service (i.e., conduct triable by court-martial).  At the time of his discharge the applicant had completed
0 years, 10 months, and 22 days net active service during this period.  This document also shows that the applicant was issued SPD Code "JFS," his character of service was "under conditions other than honorable" for the period of service under review, and he was issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).

18.  The applicant's military service records document no acts of valor, significant achievement, or service warranting special recognition.

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


20.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers upon expiration term of service (ETS); authority and general provisions governing the separation of enlisted Soldiers prior to ETS to meet the needs of the Service and its members; procedures for implementation of laws and policies governing voluntary retirement of enlisted Soldiers of the Army by reason of length of service; and the criteria governing the issuance of honorable, general, and under other than honorable conditions discharge certificates.  Chapter 10 (Discharge for the Good of the Service) of this Army regulation provides that a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.  An under other than honorable discharge certificate normally is appropriate for a member who is discharged for the good of the Service.  However, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment.

21.  Army Regulation 635-5-1 (Separation Program Designators (SPD)) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD to be entered on the DD Form 214.  It identifies the SPD of “JFS” as the appropriate SPD to assign enlisted Soldiers administratively discharged under the provisions of Chapter 10, Army Regulation 635-200, for conduct triable by court-martial.

22.  Army Regulation 635-200, Chapter 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, 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.

23.  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.



24.  Army Regulation 635-200, paragraph 3-7c, provides that a discharge under other than honorable conditions is an administrative separation from the service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, homosexuality, security reasons, or for the good of the Service.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends, in effect, that his discharge should be upgraded because the U.S. Army breached the training option he was promised in his enlistment contract.  He also contends his discharge should be upgraded so that he may receive veterans’ benefits.

2.  The evidence of record confirms that the applicant enlisted in the U.S. Army for a period of 3 years on 13 January 1978 for U.S. Army Combat Arms Enlistment Option - Europe and the MOS 11B10 (Infantryman) training option. The evidence of record also shows that the applicant was trained in and awarded MOS 11B1O (Infantryman) on 8 June 1978, and he was assigned to U.S. Army Europe in Germany on 17 July 1978.  There is no evidence the applicant enlisted for training in MOS 11M (Mechanized Infantryman).  Thus, the evidence of record refutes the applicant’s claim that the U.S. Army breached his enlistment contract.  Therefore, the applicant provides insufficient evidence in support of his claim and he is not entitled to correction of his records in this case.

3.  The evidence of record shows that the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the Service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.  Records show the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  The evidence of record shows that based on the seriousness of the offenses for which the applicant admitted guilt, the punishment for which included a bad conduct or dishonorable discharge, he voluntarily submitted a request for discharge for the good of the Service.  In this regard, the applicant’s record documents punishment under Article 15 and court-martial charges that included 19 specifications of Article 86, 1 specification of Article 91, 5 specifications of Article 92, and 2 specifications of Article 115 during the period of service under review.  Thus, the applicant’s conduct did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service during the period of service under review was not satisfactory.  Therefore, the applicant is not entitled to a general discharge under honorable conditions.

5.  As a matter of information and in response to the applicant’s request, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or government benefits.

6.  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.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X____  ____X____  ____X____  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.




      _______ _   __X_____   ___
               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)                                         AR20080012302



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ABCMR Record of Proceedings (cont)                                         AR20080012302



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