IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080014810 


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 or general discharge. 

2.  The applicant states, in effect, that his spouse was responsible for the debts which ultimately led to his discharge, and that he did not know what she was doing while he was attending the Advanced Noncommissioned Officer Course (ANCOC).  He also states that he wishes to have his discharge upgraded so that he may receive his Department of Veterans Affairs (DVA) benefits to include burial benefits. 

3.  The applicant provides a transmittal document, dated 8 September 2008, from the Veteran’s Services Office 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 after having prior service in the Regular Army and the Army National Guard, he reenlisted in the Regular Army on 27 June 1977 in the rank and pay grade of private/E-2.  He completed training and was awarded military occupational specialty 76Y (Unit Supply Specialist).  He served a tour in Germany from September 1977 to September 1979, then he was reassigned to Fort Lewis, Washington.  He progressed in rank and pay grade to staff sergeant (SSG)/E-6.  On 5 May 1985, he again departed for Germany.  

3.  The applicant attended the 76Y ANCOC at Fort Lee, Virginia from 3 March to 2 May 1986.

4.  The available evidence shows that on 17 August 1986, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ).  His punishment consisted of a reduction in rank from SSG to sergeant (SGT) which was suspended until 14 November 1986.  However, this suspended reduction was vacated on 23 October 1986.  The reason for the punishment is unclear.  The NJP proceedings are not in the available record.

5.  On or about 23 January 1987, a bar to reenlistment was imposed against the applicant.  The DA Form 4126-R (Bar to Reenlistment Certificate) referenced the applicant’s NJP, 11 instances of non-payment of just debts between August 1985 and December 1986, a counseling statement, and the suspension of the applicant’s check-cashing privileges. 

6.  On 20 February 1988, the applicant accepted NJP under the provisions of  Article 15 of the UCMJ for being derelict in the performance of his duties and being incapacitated for the proper performance of his duties as a result of wrongful previous overindulgence in intoxicating liquor or drugs.  His punishment consisted of a reduction in rank from SGT to specialist four, a forfeiture of $519.00, and extra duty for 20 days.  The applicant appealed this punishment; however, on 28 February 1988, his appeal was denied.

7.  On 12 April 1988, 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), after charges had been preferred against him for submitting a false and fraudulent claim, for failure to pay debts, and for obtaining services by false pretenses.  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 offenses charged 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.  

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 offenses with which he was charged, 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 named 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 discharge.  It does not appear that the applicant elected to submit statements in his own behalf.

10.  On 15 April 1988, the proper separation authority approved the applicant’s discharge under the provisions of Chapter 10, Army Regulation 635-200, and directed that he be discharged under other than honorable conditions.  He also directed that he be reduced to the rank and pay grade of private/E-1.  On 4 May 1988, the applicant was discharged accordingly.

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




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 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.

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

2.  The applicant’s contention that his spouse was responsible for the debts which ultimately led to his discharge was considered, as was his contention that he did not know about what she was doing while he was at the ANCOC academy.  However, the applicant only attended the ANCOC academy from 
3 March to 2 May 1986, and the record of him failing to pay just debts occurred between August 1985 and December 1986.  The applicant was equally responsible for ensuring that his debts were paid.

3.  The fact that the applicant wishes to have his discharge changed to an honorable or general discharge so that he may receive DVA benefits was noted.  However, the ABCMR does not grant requests for upgrade of discharges solely for the purpose of making an applicant eligible for benefits.



4.  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 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 on two occasions and was barred from reenlistment, and that he requested discharge in lieu of trial by court-martial for other offenses of the UCMJ.  Based on this 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)                                         AR20080014810



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ABCMR Record of Proceedings (cont)                                         AR20080014810



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