IN THE CASE OF:	  

		BOARD DATE:	        12 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013459 


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 to an honorable or a general discharge.

2.  The applicant states that the officer who had him sign his discharge stated that his discharge would be upgraded to general or honorable in 2 years.

3.  The applicant provides no additional documentation in support of his 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 21 April 1981, the applicant enlisted in the Regular Army in Butte, Montana, for 4 years in the pay grade of E-1.  He successfully completed his training as a track vehicle mechanic.  He was promoted to the pay grade of E-2 on 21 October 1981.

3.  Nonjudicial punishment was imposed against the applicant on 18 December 1981 for two incidents of failure to go at the time prescribed to his appointed place of duty and for willfully disobeying a lawful order.  His punishment consisted of a forfeiture of pay, restriction, and extra duty.

4.  On 26 March 1982, the applicant was notified that charges were pending against him for operating a privately-owned vehicle without a valid operator’s license; wrongfully operating a passenger car while drunk and causing the vehicle to strike a guard rail; wrongfully appropriating an M885, "5/4 ton" cargo truck, of a value of about $4,569.00, the property of the United States Government; wrongfully appropriating an M882, 4X4 ton cargo truck, a value of about $5,355.00, the property of the United States Government; damaging an M882, 4X4 ton cargo truck, a value of about $5,355.00, the property of the United States Government; damaging gas pumps, a value of about $2,180.00; and wrongfully and unlawfully leaving the scene of a collision without making his identification known.

5.  The applicant acknowledged receipt of the notification on 30 March 1982 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.  In his request for discharge the applicant acknowledged that he was guilty of the charges against him and that he understood that there was no automatic upgrading, nor review by any government agency, of a less than honorable discharge.  He also acknowledged that he understood that he must apply to the Army Discharge Review Board or the ABCMR if he wished to have his discharge reviewed.  He acknowledged that he realized that the act of consideration by either board does not imply that his discharge will be upgraded.

6.  Along with his request for discharge, he submitted a statement in his own behalf in which he stated that he realized that he made a few mistakes that were very serious toward his Army career.  He also stated that he realized that it would be the best idea for him to get out of the Army and to try to rebuild himself for the future and to possibly rejoin the Army when he knows that he is ready or in a time of war.

7.  The appropriate authority approved the request for discharge on 24 May 1982 and directed the issuance of a Certificate of Discharge Under Other Than Honorable Conditions.

8.  Accordingly, on 15 June 1982, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 1 year, 1 month, and 25 days of net active service this period.  He was furnished a Certificate of Discharge Under Other Than Honorable Conditions.

9.  On 13 November 1985, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge.

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, 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.

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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefor were appropriate considering all the facts of the case.

3.  The applicant’s contentions have been noted.  However, the available records show that he submitted a request for discharge and in his request he acknowledged that he understood that there was no automatic upgrading, nor review by any government agency of a less than honorable discharge.

4.  There is no evidence in the available records, nor has the applicant submitted any evidence, to support his contention that he was told that his discharge would be upgraded to an honorable or a general discharge.  Considering his acts of indiscipline, it does not appear that the type of discharge that he received is too harsh.

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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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.



      __________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)                                         AR20080013459



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ABCMR Record of Proceedings (cont)                                         AR20080013459



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