IN THE CASE OF:	  

		BOARD DATE:	        4 December 2008

		DOCKET NUMBER:  AR20080013581 


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 his discharge should be upgraded due to the type of discharge and passage of time.  He adds that his discharge is hindering his ability of getting employment, and that at the time of his discharge he was told his discharge would be upgraded six months after his discharge.

3.  The applicant provides a self-authored statement, dated 2 October 2006, and a copy of his DD Form 214 (Certificate of Release or Discharge) dated 11 March 2003, in support of his 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 that he was born on 29 May 1965 and enlisted in the Regular Army at 18 years and 8 months of age on 8 February 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewmember).  The highest rank/grade the applicant attained during his military service was private/pay grade E-2.

3.  The applicant's records show he was awarded the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), the Sharpshooter Marksmanship Qualification Badge with Grenade Bar, the Army Service Ribbon, the Army Achievement Medal, the Overseas Service Ribbon, and the Drivers Badge.

4.  On 18 December 1985, court-martial charges were preferred against the applicant for four specifications of committing the offense of carnal knowledge with M______ W___ on or about 1 November 1985, 8 November 1985, 9 November 1985, and 14 November 1985.

5.  On 10 January 1986, 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).

6.  In his request for discharge the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 10 January 1986, the applicant's immediate commander recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge. 

8.  On 14 January 1986, the applicant's intermediate and senior commanders also recommended approval of the applicant’s discharge with the issuance of an under other than honorable conditions discharge.

9.  On 28 February 1986, 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 and be reduced the lowest enlisted grade.  On 11 March 1986, the applicant was accordingly discharged.  The DD Form 214 he was issued shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 2 years, 1 month, and 4 days of creditable active military service.

10.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

11.  In his self-authored statement, dated 2 October 2006, the applicant states that he was young and far from home at the time which left him unprepared and played heavily on his judgment.  He also states that he takes no pride in his actions and has regretted his misconduct for the past 20 years.  He adds that he served his country to the best of his abilities and that his conduct was that of poor judgment.  However, since his discharge, he has remarried, raised his and his wife's children, and instilled in them the hard-taught lesson of his own experience.  He concludes that an upgrade of his discharge would lead to other opportunities for himself and his family.

12.  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.

13.  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.
14.  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 evidence of record shows that the applicant was 18 years and 8 months of age at the time of his enlistment and 19 years of age at the time of his offense. However, there is no evidence that indicates that he was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his misconduct was the result of his age.

2.  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, willingly, and in writing, 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.

3.  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.  Based on his record of indiscipline, the applicant's service clearly did 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

___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)                                         AR20080013581



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ABCMR Record of Proceedings (cont)                                         AR20080013581



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