IN THE CASE OF:	  

	BOARD DATE:	  21 January 2009

	DOCKET NUMBER:  AR20080017363 


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 general discharge be upgraded to honorable.   

2.  The applicant states, in effect, that he would like his discharge upgraded to honorable. 

3.  The applicant provides no supporting documentation.

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.  On 16 December 1974, the applicant enlisted in the Regular Army for 2 years. He completed his initial training and was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).
3.  On 26 May 1975, the applicant was assigned for duty as a rifleman with the Air Troop, 11th Armored Cavalry Regiment, in the Federal Republic of Germany.

4.   On 25 September 1975, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failure to obey a lawful order and for being disrespectful in language.  The punishment included reduction to pay grade E-1(suspended), a forfeiture of $100.00 pay per month for 2 months, and 15 days restriction and extra duty.

5.  On 19 January 1976, the applicant was promoted to private first class (PFC)/ pay grade E-3.  

6.  On 4 June 1976, charges were preferred under the UCMJ for violation of Article 86 for failure to go at the time prescribed to his appointed place of duty (four specifications); and for violation of Article 91 for willfully disobeying a superior noncommissioned officer (two specifications).

7.  On 22 July 1976, 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. 

8.  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 law.

9.  On 27 August 1976, the separation authority approved the applicant’s request for discharge and directed that he be issued an Under Other Than Honorable Conditions Discharge Certificate.  On 3 September 1976, the applicant was discharged accordingly.  He had completed a total of 1year, 8 months, and
18 days of creditable active military service.


10.  On 31 August 1978, the Army Discharge Review Board (ADRB) considered the applicant’s request for an upgrade of his discharge.  The applicant contended that he had not received adequate counsel, had family problems, and that the undesirable discharge was too harsh.  The ADRB found that although the characterization of the applicant’s service could be considered too harsh, the offenses for which he was released could have resulted in a bad conduct discharge.  The record indicated that at the time of his separation, the applicant was properly counseled.  The adequacy of counseling concerning his family problems was neither confirmed nor denied by the record.  The ADRB noted the nature of the charges which resulted in his separation for the good of the service, his overall record (only one NJP), his length of service, and in particular that he had no lost time.  The ADRB granted the applicant’s appeal and upgraded his discharge to under honorable conditions based on mitigating personal problems.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7a, further 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.

13.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 91, disobeying a lawful order from a noncommissioned officer.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge should be further upgraded from general to honorable.

2.  The applicant has not provided any convincing evidence or argument showing that his general discharge should be upgraded to honorable.

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)                                         AR20070016793



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ABCMR Record of Proceedings (cont)                                         AR20080017363



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