IN THE CASE OF:	  

		BOARD DATE:	       10 February 2009

		DOCKET NUMBER:  AR20080017115 


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 be upgraded to honorable.

2.  The applicant states that he made a bad decision that he has lived with all of his life.  He believes that everyone deserves a second chance and he is a changed man.  He is a family man with four children and two grandchildren.

3.  The applicant provides, in support of his request, letters from his wife, a step-daughter, and the pastor of the First Samoan Congregational Church of Tacoma, Washington.

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 for 4 years and entered active duty on 3 January 1979.  He failed, for academic reasons, to complete his advanced individual training (AIT) as an electronic instrument repairer.  In November 1979, after recycling, he completed AIT as a field switchboard operator and was posted to Germany.

3.  He was advanced to specialist four, pay grade E-4, on 1 September 1980.  On 2 January 1982 he was awarded the Army Good Conduct Medal.

4.  On 14 June 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  The charge sheet is not contained in the available records.  There is no available evidence as to the nature of his offense(s).

5.  In his request for discharge, the applicant indicated that he understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

6.  On 22 June 1982, the separation authority approved the applicant's request for discharge in lieu of trial by court-martial, and directed that a discharge under other than honorable conditions be issued and that the applicant be reduced to pay grade E-1.  He had 3 years, 6 months, and 7 days of creditable service with no lost time.

7.  Army Regulation 635-200 (Personnel Separations) 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.
8.  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.

9.  The supporting documents submitted by the applicant to substantiate his request include the following:

	a.  The applicant's wife writes that he is committed, supportive, and patient.  They have been happily married for over 22 years.  They have four children.  He is committed to God, family, friends and work.  He has always been reluctant to spend money on himself but will buy anything for her or the children.  He loves his extended family.  She relates that her niece and four children have lived with them for over 2 years and the applicant is in the process of adopting her brother's son who has lived with them for 1 1/2 years.  He helped care for her father who is now deceased.  He is putting the oldest daughter through college and graduate school.  When the two sons played football, the applicant did not miss a game or a practice in 5 years.  He tells her to relax and be grateful.  He says, "Life is too short to be mad and angry all the time."

	b.  The applicant's step-daughter reports that he married her mother in 1986 when she was 8 years old and her younger brother was 7 years old.  In 1988 her parents adopted a boy who is now 21, and in 2007 they adopted a 19-month old baby boy.  She knows about his discharge and says that he regrets his decision. He has changed from thinking about himself and now considers others.  To her, the applicant is her Dad who was always there for her.  The family has not been rich, but he has worked hard to provide all of them a safe and stable environment.  He has taught them to be honest and true to themselves.  He has encouraged them to further their education.

	c.  The pastor of the First Samoan Congregational Church of Tacoma, Washington, knows that the applicant is applying to upgrade his discharge.  He relates that the applicant is an active deacon and has been an important leader in the church for over 20 years.  He says that people rely on the applicant's competent leadership and spiritual qualities.  The pastor recommends that the applicant be afforded "Veterans Status."

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.  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 states that he regrets making a bad decision but that he has become a responsible family man.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations and that the character of the discharge was appropriate to the offense for which he requested discharge in lieu of trial by court-martial.

3.  The evidence of support from his family and pastor and the obvious esteem in which they hold the applicant is noted.  However, these matters, in and of themselves, are insufficient to justify changing the discharge.

3.  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 the aforementioned requirement.

4.  In view of the foregoing, there is no basis for granting the applicant's request.

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.



      __________X_______________
                 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)                                         AR20080017115



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ABCMR Record of Proceedings (cont)                                         AR20080017115



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