IN THE CASE OF:	  

		BOARD DATE:	        28 OCTOBER 2008

		DOCKET NUMBER:  AR20080014507 


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 a general discharge.

2.  The applicant states that his discharge is inequitable because it was based on one isolated incident in over 6 years of service.  He goes on to state that he was offered the discharge but did not understand the long term effect it would have on him or he would not have accepted it because nothing was ever presented to warrant his discharge.

3.  The applicant provides a copy of a DD Form 214, dated 28 November 1984, 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 United States Army Reserve (USAR) in New Orleans, Louisiana on 6 January 1984.  He entered initial active duty for training (IADT) on 20 June 1984 and served until he was honorably released from IADT on 28 November 1984, when he was returned to his USAR unit for assignment as a technical drafting specialist.  He was advanced to the pay grade of E-4 on 1 April 1986.

3.  On 14 March 1990, the applicant enlisted in the Regular Army in New Orleans for a period of 4 years and training in the field artillery career management field.  He was transferred to Fort Sill, Oklahoma to undergo his advanced individual training.  He completed his training as a fire support specialist and remained assigned to Fort Sill.  

4.  On 21 September 1990, nonjudicial punishment was imposed against the applicant for two specifications of uttering bad checks.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay, extra duty, and restriction.

5.  On 6 November 1990, charges were preferred against the applicant for one specification of wrongful possession of cocaine; one specification of wrongful use of cocaine; one specification of larceny; and one specification of housebreaking, with intent to commit larceny. 

6.  On 14 November 1990, after consulting with counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will, without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf or to undergo a physical evaluation prior to separation. 
 
7.  The appropriate authority (a major general) approved his request on 15 November 1990 and directed that he be discharged under other than honorable conditions.



8.  Accordingly, on 20 November 1990, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 8 months and 7 days of active service during his current enlistment.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  Paragraph 3-7b also 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 voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by courtmartial, was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons, therefore, were appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  He clearly indicated in his request that he understood the consequences of such a discharge.  
  
4.  The applicant’s contentions have been noted; however, that alone is not sufficiently mitigating to warrant an upgrade of his discharge when considering the serious nature of his misconduct and his overall undistinguished record of service.  His service simply does not rise to the level of being under honorable conditions.

5.  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.
 
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)                                         AR20080014507



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080014507



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1