IN THE CASE OF:	  

		BOARD DATE:	       18 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014064 


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 general, under honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant essentially states that he would like his discharge upgraded to an honorable discharge for employment reasons and the fact that he had more than 1 continuous year of service.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 20 November 1984.  He completed initial entry training at Fort Benning, Georgia and was awarded military occupational specialty 11B (Infantryman).  He was then reassigned to Fort Campbell, Kentucky in March 1985 for what would be his only permanent duty assignment.

3.  On 24 June 1985, the applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty and willfully disobeying a lawful order from his superior noncommissioned officer (NCO).  His punishment consisted of reduction in rank and pay grade from private/E-2 to private/E-1, forfeiture of $144.00 per month for 1 month, and extra duty for 14 days.

4.  On 10 September 1985, the applicant accepted NJP under Article 15 of the UCMJ for being disrespectful in language toward an NCO and failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $144.00 pay per month for 1 month (suspended until 31 October 1985), extra duty for 14 days, and a written reprimand.  

5.  On 31 January 1986, the applicant was informed that charges had been preferred against him for two counts of willfully disobeying a lawful order from his superior NCO and one count of being disrespectful in language toward a superior NCO, which are offenses punishable under the UCMJ with a punitive discharge.

6.  On or about 25 February 1986 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 charges against him or of lesser included offenses 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.  

7.  The applicant also acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with counsel, who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses 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, 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.  

8.  The applicant also understood that if his request for discharge was accepted, he may be discharged under conditions other than honorable 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 submit a statement in his own behalf.

9.  In his statement the applicant essentially stated that he was excited when he joined the Army and thought that the Army would be good for him and his family, and that he enjoyed basic training.  He also stated that he thought that was what the Army was all about and that he just began having problems after arriving at Fort Campbell, Kentucky.  He further stated that some of his problems were due to family problems, some were personality problems with members of his chain of command, and that some of the problems were his fault.  He continued by essentially stating that he thought at the time that it would be best for him to get out of the Army, but did not think he deserved an under other than honorable conditions discharge.  He also stated that he was not a bad person, and had not been as bad a Soldier as his command or some people in his chain of command thought.  Further, he stated that an under other than honorable conditions discharge would follow him and his family forever.

10.  On 11 March 1986, the proper separation authority approved the applicant’s discharge under Army Regulation 635-200, Chapter 10, and essentially directed that he be furnished a General Discharge Certificate.  On 13 March 1986, the applicant was discharged accordingly.

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 stated that he would like his general discharge upgraded to an honorable discharge for employment reasons and the fact that had more than
1 continuous year of service.

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; however, the separation authority may direct a General Discharge Certificate, if such is merited by the member's overall record during the current enlistment.  

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

15.  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 general discharge should be upgraded to an honorable discharge. 

2.  The fact that the applicant wishes to have his general discharge upgraded to an honorable discharge for employment reasons was noted; however, there are no provisions for upgrading a discharge solely for the purpose of improving a person's employment prospects.



3.  The applicant's contention that his discharge should be upgraded because he had more than 1 continuous year of service was also considered, but rejected.  There is no entitlement to an honorable discharge simply for completing over 
1 year of service.

4.  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.

5.  It is clear that the applicant was charged with the commission of offenses 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.

6.  The applicant's record of service shows that he accepted NJP under Article 15 of the UCMJ on two occasions for multiple offenses of the UCMJ and that he was pending a trial by court-martial for three additional offenses of the UCMJ which were punishable with a punitive discharge.  Based on this record of indiscipline in just 15 months of service, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to 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)                                         AR20080014064



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ABCMR Record of Proceedings (cont)                                         AR20080014064



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