IN THE CASE OF:	  

		BOARD DATE:	        20 November 2008

		DOCKET NUMBER:  AR20080014366 


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. 

2.  The applicant states that his discharge was inequitable because it was based on one isolated incident in 28 months of service with no other adverse action. 

3.  The applicant provides no additional evidence 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.  The applicant enlisted in the Regular Army on 20 September 1977 for a period of 3 years.  He successfully completed One Station Unit Training in military occupational specialty 13B (cannon crewman).
3.  On 4 February 1980, nonjudicial punishment was imposed against the applicant for disobeying a lawful command.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, and extra duty.

4.  On 27 May 1980, charges were preferred against the applicant for disobeying a lawful order on or about 1 May 1980, treating a sergeant with contempt on or about 1 May 1980, two specifications of using disrespectful language on or about 1 May 1980, two specifications of assault on or about 1 May 1980, two specifications of communicating a threat to injure on or about 1 May 1980, communicating a threat on or about 1 May 1980, behaving with disrespect on or about 8 May 1980, and disobeying a lawful command on or about 8 May 1980.  Trial by special court-martial was recommended. 

5.  On 18 July 1980, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable discharge certificate; that he might be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs); that he would be deprived of many or all Army benefits; and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

6.  On 24 July 1980, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge under other than honorable conditions.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 5 August 1980 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He had served a total of 2 years, 10 months, and 16 days of creditable active service.

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

9.  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.

10.  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.  

11.  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 does not support the applicant’s contention that his discharge was inequitable because it was based on one isolated incident in 
28 months of service with no other adverse action.  Evidence of record shows that nonjudicial punishment was imposed against the applicant in February 1980. In addition, he committed numerous serious offenses on or about 1 May 1980 and he committed two offenses on or about 8 May 1980.  

2.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however he elected not to do so.  

3.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

4.  The applicant’s record of service includes one nonjudicial punishment and numerous serious offenses which led to special court-martial charges.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a 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)                                         AR20080014366





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ABCMR Record of Proceedings (cont)                                         AR20080014366



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