IN THE CASE OF:	

		BOARD DATE:	  19 February 2009

		DOCKET NUMBER:  AR20080018090 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he was discharged from the psychiatric unit of a military hospital.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 4 May 1986, 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’s records show he enlisted in the Regular Army for a period of 4 years on 25 May 1984.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 31C (Single Channel Radio Operator).  The highest rank/grade the applicant attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's records show he was awarded the Army Service Ribbon, the Overseas Service Ribbon, the Expert Marksmanship Qualification Badge with Rifle Bar (M-16), and the Expert Marksmanship Qualification Badge with Grenade Bar.  His records do not show any achievements or special recognitions during his military service.

4.  On or about 17 June 1986, the applicant participated in a unit urinalysis and his urine sample tested positive for marijuana.

5.  On 18 August 1986, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully ingesting marijuana during the 30-day period prior to giving a specimen on or about 17 June 1986.  His punishment consisted of reduction to private first class (PFC)/E-3 and a forfeiture of $392.00 pay for 2 months (suspended until 18 February 1986).

6.  On 28 June 1987, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for failing to go at the prescribed time to his appointed place of duty on or about 15 July 1987 and on two separate occasions on or about 17 July 1987.  His punishment consisted of a forfeiture of $188.00 pay for one month (suspended until 28 January 1988), reduction to PFC (suspended until 28 January 1988), and 14 days of restriction and extra duty.

7.  On 7 April 1988, court-martial charges were preferred against the applicant for one specification of wrongfully possessing some amount of amphetamine, on or about 23 March 1988; one specification of wrongfully possessing drug abuse paraphernalia (two packages of rolling paper, two rolling machines, and a smoking device) on or about 23 March 1988; one specification of wrongfully possessing prohibited items (two nunchakus) on or about 26 January 1988; one specification of wrongfully possessing prohibited items (butterfly knife with a      4-inch blade) on or about 26 January 1988; one specification of willfully making a false statement between 29 January 1988 and 23 March 1988; and one specification of dishonorably failing to pay due debt in the amount of $468.00.



8.  On 12 April 1988, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

9.  In his request for discharge, the applicant indicated that he understood that if his request for discharge is accepted, he may be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate.  He further acknowledged he understood that if the 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. 

10.  On 12 April 1988, the applicant was admitted to the hospital and was diagnosed with an adjustment disorder with depressed mood.  However, the medical authorities determined that his depression was a reaction to notification of court-martial charges under the UCMJ.

11.  On 12 April 1988, the applicant’s immediate, intermediate, and senior commanders recommended approval of the applicant’s discharge with an Under Other Than Honorable Discharge Certificate.

12.  On 21 April 1988, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an Under Other Than Honorable Conditions Discharge Certificate and be reduced to the lowest enlisted grade.  Accordingly, the applicant was discharged on 4 May 1988.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service with a character of service of under other than honorable conditions and that he completed a total of 3 years, 11 months, and 10 days of creditable active military service.

13.  On 13 June 2003, the Army Discharge Review Board (ADRB) denied the applicant’s petition for an upgrade of his discharge.

14.  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, 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.

15.  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.

16.  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 under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant’s diagnosis with an adjustment disorder with depressed mood on the date he willingly requested his discharge is noted; however, medical authorities at the time believed that his depression was a reaction to the notification of court-martial charges.  Nevertheless, there is no evidence in the available record, and the applicant did not provide substantiating evidence that shows his indiscipline and subsequent voluntary request for discharge was due to a psychiatric condition.  

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, 


willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  Based on his 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, the applicant is not entitled to either a general or an honorable 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.



      __________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)                                         AR20080018090



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ABCMR Record of Proceedings (cont)                                         AR20080018090



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