IN THE CASE OF:	

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080018312 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states he made some bad decisions in the past but now God has changed his life and he seeks forgiveness.

3.  The applicant provides no additional evidence or official documentation 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 military personnel records show he enlisted in the Regular Army on 13 December 1973.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty 05E (Voice Radio Operator).  He reenlisted on 14 October 1976.

3.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 1 November 1977, on 24 April, on 
18 August, on 26 September, and on 24 October 1978.  His offenses included two specifications of violation of a general regulation, failure to obey an order from a noncommissioned officer (NCO), four specifications of failure to go to his appointed place of duty, and being absent without leave (AWOL) from 31 August 1978 to 17 September 1978.

4.  On 17 November 1978, the applicant was evaluated by a behavior science specialist.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.  The evaluation was reviewed by a lieutenant colonel of the Medical Corps, the Chief of Psychiatry.

5.  On 8 December 1978, court-martial charges were preferred against the applicant for five specifications of failure to go at the time prescribed to his appointed place of duty during the period from 22 November to 4 December 1978 and one specification of failure to obey a lawful order from an NCO.

6.  On 14 December 1978, the applicant was tried before a summary court-martial.

	a.  The applicant plead not guilty to six specifications of failure to go at the time prescribed to his appointed place of duty during the periods from 
18 - 19 October, from 22 - 23 October, and from 28 - 29 October 1978.  He was found guilty of three specifications of failure to go at the time prescribed to his appointed place of duty.

	b.  The applicant plead not guilty but was found guilty of five specifications of failure to obey a lawful order from an NCO.

	c.  The applicant's sentence consisted of forfeiture of $297 for one month, 
60 days restriction, and 45 days hard labor without confinement.



7.  On 19 December 1978, the convening authority approved the sentence.  

8.  On 10 January 1979, the applicant signed his request for discharge for the good of the service, in lieu of trial by court-martial indicating that he was making the request of his own free will and that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he may be discharged under other than honorable conditions, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (now known as the Department of Veterans Affairs), and that he may expect to encounter substantial prejudice in civilian life because of discharge under other than honorable conditions.

9.  The applicant's commander and intermediate commander recommended approval of the request for discharge and that the applicant be furnished a less than honorable discharge.

10.  On 15 February 1979, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that a Discharge Certificate (Under Other Than Honorable Conditions) be furnished to the applicant.  

11.  On 23 February 1979, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), due to conduct triable by court martial.  He had completed 2 years, 4 months, and 10 days of active service that was characterized as under other than honorable.

12.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 9 March 1981, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined the applicant was properly discharged.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  

2.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no indication of procedural or other errors that would tend to jeopardize his rights.

3.  A review of the applicant's record of service, which included non-judicial punishment on five occasions and conviction by a summary court-martial, shows the applicant did not meet the standards of acceptable conduct and performance of duty for Army personnel.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor, achievement, or service that would warrant special recognition.

4.  The ABCMR does not upgrade discharges based solely on the passage of time.  

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 that 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.




      _______ _ 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)                                         AR20080018312





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ABCMR Record of Proceedings (cont)                                         AR20080018312



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