IN THE CASE OF:	  

		BOARD DATE:	        7 April 2009

		DOCKET NUMBER:  AR20080018102 


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, an upgrade of his discharge.

2.  The applicant states, in effect, that he loved the Army and intended to make it a career; however, when he reenlisted, the Army changed his military occupational specialty (MOS) without sending him to school.  He adds that he did not know much about his new MOS which led to constant harassment by his company commander and he ultimately chose to get out.  He also adds that he has regretted his actions and asks the Board to give him a second chance.  He needs his discharge upgraded for entitlement to civil service employment as well as medical benefits.

3.  The applicant did not provide any additional documentary evidence 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 3 years on 11 October 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63F (Recovery Vehicle Operator).  His records also show he executed a 3-year reenlistment on 19 August 1980.  The highest rank/grade the applicant attained during his military service was specialist four (SP4)/E-4.

3.  The applicant's record reveals a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 26 February 1980, for being disrespectful in language toward a superior noncommissioned officer (NCO).  His punishment consisted of reduction to private first class (PFC)/E-3 (suspended for 60 days), a forfeiture of $100.00 pay, 7 days of restriction (suspended for 60 days), and 14 days of extra duty.  However, on an unknown date, the suspension of the punishment of 7 days of restriction was vacated and the unexecuted portion of the punishment was ordered duly executed.  Additionally, on 28 February 1980, the suspended portion of the punishments of 7 days of restriction and reduction to PFC/E-3 was set aside; and 

	b.  on 7 March 1980, for disobeying a lawful order from a superior NCO.  His punishment consisted of 14 days of extra duty (7 days suspended for 60 days) and a forfeiture of $100.00 pay for 1 month (suspended for 60 days).

4.  On 17 September 1980, Headquarters, U.S. Army Armor Center and Fort Knox, Fort Knox, KY, published Orders 182-68, awarding the applicant MOS 63N (Tank System Mechanic) in accordance with Department of the Army Circular 611-78 (Military Occupational Classification Structure Development and Implementation) as part of the restructuring of the MOS career field.

5.  The applicant’s records also show he departed his unit in an absent without leave (AWOL) status on 4 May 1981 and returned to military control on 5 May 1981.  He again departed his unit in an AWOL status on 15 August 1981 and returned to military control on 17 August 1981.

6.  On 4 September 1981, the applicant again 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 24 August 1981.  His punishment consisted of a forfeiture of $150.00 pay, reduction to PFC/E-3 (suspended for 30 days), and 7 days of extra duty (suspended for 30 days).  However, on 29 September 1981, the suspension of the punishment of reduction to PFC/E-3 was ordered vacated and the unexecuted portion of the punishment was ordered duly executed.

7.  On 14 October 1981, 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 1 October 1981.  His punishment consisted of a forfeiture of $50.00 pay and reduction to private (PV2)/E-2 (suspended for 20 days).

8.  On 25 November 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for disrespecting a commissioned officer on or about 9 November 1981.  His punishment consisted of reduction to private (PV2)/E-2 (suspended for 30 days) and 7 days of extra duty (suspended for 30 days).

9.  On 2 December 1981, the applicant’s immediate commander initiated a Bar to Reenlistment Certificate against the applicant citing his constant disciplinary problems including his two instances of nonjudicial punishment.  The applicant was furnished with a copy of this bar and submitted a statement in which he indicated that he was not trained in the new MOS despite his squad leader’s allegations that he does a good job in his MOS.

10.  On 3 December 1981, the applicant again departed his unit in an AWOL status; however, he returned to military control on the next day.

11.  On 11 December 1981, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for being AWOL during the period on or about 3 December 1981 through on or about 4 December 1981.  His punishment consisted of reduction to PV2/E-2, a forfeiture of $100.00 pay, and 7 days of correctional custody.  He appealed his punishment to the next higher authority; however, his appeal was denied on 14 December 1981.

12.  On 14 December 1981, the applicant’s battalion commander approved the Bar to Reenlistment Certificate against the applicant.


13.  On 4 January 1982, court-martial charges were preferred against the applicant for one specification of willfully disobeying a lawful order from his immediate commander to report to the post correctional custody facility on or about 16 December 1981.

14.  On 22 January 1982, 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).

15.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  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, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

16.  On an unspecified date, the applicant's immediate commander remarked that the applicant had been involved in numerous incidents of a discreditable nature with military authorities and had repeatedly demonstrated a lack of desire to improve himself as a Soldier.  He further recommended approval of the applicant’s discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

17.  On an unspecified date, the applicant’s intermediate commander commented on the applicant’s past performance and his negligible potential for rehabilitation and remarked that he did not possess the qualities required for continued service in the Army.  His blatant disregard for authority, frequent and severe offenses, and immaturity indicated that he lacked the courage, fortitude, and moral fiber expected of Soldiers in the Army.  He further recommended the request be approved with an Under Other Than Honorable Conditions Discharge Certificate.

18.  On 27 January 1982, the applicant’s senior commander concurred with the immediate commander’s recommendation and recommended approval of the discharge with an Under Other Than Honorable Conditions Discharge Certificate.

19.  On 3 February 1982, 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 the lowest enlisted grade.  On 12 February 1982, the applicant was accordingly discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he was discharged for the good of the service with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 4 years, 3 months, and 26 days of creditable active military service and had 6 days of lost time due to AWOL.

20.  On 19 November 1992, the Army Discharge Review Board denied the applicant’s petition for an upgrade of his discharge. 

21.  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.

22.  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.

23.  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 should be upgraded.

2.  The applicant’s contention that his MOS was changed and that he was not trained in his MOS was considered; however, it was found to be without merit.  There is no evidence in the available records and the applicant did not provide any substantiating evidence that shows that his history of misconduct, which began more than 6 months before he was reclassified, was a result of the MOS change.  Even if he encountered difficulties performing in his MOS, he had many legitimate avenues through which he could have received assistance or relief, had he chosen to use them.

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.  In order to justify correction of a military record, the applicant must show, 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.  Based on his record of indiscipline, the applicant's service clearly did 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.


																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)                                         AR20080018102



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080018102



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1