IN THE CASE OF:	  

		BOARD DATE:	        23 DECEMBER 2008

		DOCKET NUMBER:  AR20080016823 


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 a more favorable discharge.

2.  The applicant states that he was unjustly discharged for something he did not do and contends that he was sick at the time.  He goes on to state that his mother was also sick at the time, which made him want to get out of the Army.  He also states that his counsel lied to him in regards to his discharge. 

3.  The applicant provides copies of medical documents which include psychiatric follow-up notes dated in 2008.

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 Florida Army National Guard (FLARNG) on 9 July 1974 for a period of 6 years.  He completed his initial active duty for training as a lineman, and was honorably released from active duty and returned to his FLARNG unit on 24 January 1975.

3.  On 11 November 1976 he was involuntarily ordered to active duty for a period of 18 months and 23 days due to his failure to participate in unit drills/training.  He was ordered to active duty at Fort Jackson, South Carolina for assignment to Germany.

4.  He was assigned to a signal company in Wuerzburg.  On 29 December 1977 he was honorably discharged for the purpose of immediate enlistment in the Regular Army.

5.  On 30 December 1977 he enlisted for a period of 6 years and a Selective Reenlistment Bonus (SRB).  He was advanced to the pay grade of E-4 on 17 October 1978.

6.  On 15 January 1980 charges were preferred against the applicant for wrongful sale, possession, and transfer of heroin.

7.  On 20 March 1980, after consulting with defense 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 understood the charges that had been preferred against him, 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 an under other than honorable conditions discharge, and that he might be deprived of all benefits as a result of such a discharge.  He also declined the opportunity elected to submit a statement in his own behalf.

8.  The appropriate authority (a major general) approved his request on 2 April 1980 and directed that he be discharged under other than honorable conditions.



9.  Accordingly, he was discharged under other than honorable conditions on 5 May 1980, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 11 months, and 2 days of total active service.

10.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 18 September 1981.  On 19 March 1982 the ADRB determined that his discharge was both proper and equitable and voted unanimously to deny his appeal.

11.  The applicant again applied to the ADRB for an upgrade of his discharge on 19 April 1982.  The ADRB granted him a personal appearance before the ADRB travel panel in Florida on 16 June 1983.  The applicant was represented by counsel at that hearing and after hearing all of the testimony and reviewing the available evidence in the case, the ADRB again denied his request for an upgrade of his discharge.

12.  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 was then and still 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

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's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s contentions, supporting documents, and record of service has been reviewed; however, they are not sufficiently mitigating to warrant relief when compared to the nature of his misconduct.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  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 records.  In doing so he admitted guilt to the charges against him.

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)                                         AR20080016823



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ABCMR Record of Proceedings (cont)                                         AR20080016823



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