IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080013873 


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, that his discharge under other than honorable conditions be upgraded to an honorable discharge. 

2.  The applicant essentially states that his current veteran profile derived from information from the Veterans Affairs/Department of Defense Identity Repository (VADIR) shows that his characterization of service was honorable.  

3.  The applicant provides a printout, dated 22 July 2008, from a Department of Veterans Affairs (DVA) database in support of this 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.  The applicant's military records show that he enlisted in the Regular Army on 26 March 1979.  He completed basic and advanced individual training at Fort Dix, New Jersey and was awarded military occupational specialty 64C (Motor Transport Operator).  He was then reassigned to Fort Hood, Texas in July 1979 for his initial permanent duty assignment.

3.  On 7 November 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for one count of failing to obey a lawful order and three counts of failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction in rank and pay grade from private/E-2 to private/E-1, forfeiture of $104.00 pay per month for 1 month, and correctional custody for 7 days.  The applicant appealed this punishment; however, on 16 November 1979, his appeal was denied.

4.  On 22 April 1980, the applicant was convicted by a summary court-martial for willfully disobeying a lawful order from his superior noncommissioned officer.  He was sentenced to forfeiture of $100.00 pay per month for 1 month and confinement at hard labor for 15 days.

5.  On 24 April 1980, while pending disposition of his summary court-martial, the applicant went absent without leave (AWOL).  On 24 May 1980, he was dropped from the rolls of the Army and classified a deserter, and remained in this status until he was apprehended by civil authorities on 13 July 1983 and returned to military control.  He was reassigned to the Personnel Control Facility, United States Army Field Artillery Center, Fort Sill, Oklahoma on 27 July 1983.

6.  On 28 July 1983, the applicant was informed that charges had been preferred against him for absenting himself on or about 24 April 1980 without authority and with intent to remain away therefrom permanently, and remaining so absent in desertion until he was apprehended on or about 13 July 1983, an offense punishable under the UCMJ with a punitive discharge.

7.  Additionally, on 28 July 1983, the applicant voluntarily requested discharge for the good of the Service under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Enlisted Personnel).  In his request, he understood that he may request discharge for the good of the Service because charges were preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood that by submitting his request for discharge, he acknowledged that he was guilty of the charge against him or of a lesser included offense therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  

8.  In his request for discharge the applicant acknowledged that he consulted with counsel, who fully advised him of the nature of his rights under the UCMJ, the elements of the offense with which he was charged, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty, the possible defenses which appeared to be available at the time, and the maximum permissible punishment if found guilty.  He also understood that although his legal counsel furnished him legal advice, the decision was his own.  

9.  The applicant also understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable discharge and that, as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration [now known as the Department of Veterans Affairs], and that he may be deprived of his rights and benefits as a veteran under both Federal and State law.  He also understood that he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  The applicant elected to not submit statements in his own behalf.

10.  On 16 August 1983, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and directed that he be furnished an Under Other Than Honorable Conditions Discharge Certificate.  On 29 August 1983, the applicant was discharged accordingly after completing
1 year, 2 months, and 15 days of active Federal service.

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

12.  The applicant provided a printout, dated 22 July 2008, from a DVA database which essentially shows that information from the VADIR shows that he served on active duty from 26 March 1979 to 30 August 1983 and that his rank at the time of his discharge was private first class.  This document also indicates that the applicant had 53 months of total active Federal military service (TAFMS) and that his characterization of service was honorable.  
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 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.

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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge. 

2.  The evidence provided by the applicant was carefully considered, but ultimately rejected.  The majority of the information on the document provided by the applicant has inaccurate information.  His date of release from active duty (RAD) was 29 August 1983, not 30 August 1983.  Additionally, this document shows that his rank at the time of his RAD was private first class, but at no time during the applicant's military service was he promoted to private first class.  Additionally, although the period covered by the document covers 53 months, he was only officially credited with completing 14 months and 15 days of TAFMS, as he had 38 months and 18 days of lost time.  Most importantly, the characterization of service shown on the document provided by the applicant is clearly in error, as the evidence of record unequivocally shows that the characterization of his service was under other than honorable conditions.

3.  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.

4.  It is clear that the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's record of service shows that he accepted NJP under Article 15 of the UCMJ for one count of failing to obey a lawful order and three counts of failing to go at the time prescribed to his appointed place of duty.  He was also convicted by a summary court-martial for willfully disobeying a lawful order from his superior noncommissioned officer.  He also went AWOL while pending disposition of his summary court-martial and was subsequently dropped from the rolls of the Army and classified a deserter for which he was pending a trial by court-martial.  Based on this extensive 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, he is not entitled to either an honorable or general 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)                                         AR20080013873



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ABCMR Record of Proceedings (cont)                                         AR20080013873



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