IN THE CASE OF:	  

		BOARD DATE:	        09 APRIL 2009

		DOCKET NUMBER:  AR20080018387 


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 discharge under other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states that he does not believe that the type of discharge that he received accurately reflects the character of his service.  He states that the evaluation of his service indicates that he served honorably and that he received an administrative discharge in lieu of trial by court-martial.  He concludes by requesting an upgrade of his discharge based on his overall record of service.

3.  The applicant provides in support of his application, a letter addressed to him from the Veterans Administration (VA) [now known as the Department of Veterans Affairs], dated 16 August 1989.

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 21 May 1976, the applicant enlisted in the Regular Army (RA) in Shreveport, Louisiana, for 4 years, in the pay grade of E-1.  He successfully completed his training and was awarded military occupational specialty (MOS) 75B (personnel administrative specialist).

3.  The applicant was promoted to pay grade E-2 on 21 September 1976; he was promoted to pay grade E-3 on 10 April 1977; and he was promoted to pay grade E-4 on 17 January 1979.

4.  After completing 3 years, 6 months, and 6 days of net active service, he reenlisted in the RA for 4 years on 28 November 1979, in the pay grade of E-4.  He was promoted to pay grade E-5 on 10 January 1980.  The applicant was transferred to The Netherlands on 25 May 1980.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on 21 August 1980 for wrongfully having in his possession thirty grams, more or less, of marijuana.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, and extra duty.

6.  On 14 October 1981, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty on 17 August 1981,
20 August 1981, 21 August 1981, 24 August 1981, and 16 September 1981.  His punishment consisted of a forfeiture of pay and extra duty.

7.  On 15 January 1982, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty on 7 January 1982.  His punishment consisted of a forfeiture of pay and extra duty.

8.  The applicant had NJP imposed against him on 30 April 1982 for failing to go at the time prescribed to his appointed place of duty on 25 March 1982.  His punishment consisted of a reduction in pay grade and restriction.

9.  On 12 July 1982, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty on 4 June 1982.  His punishment consisted of a reduction in pay grade.



10.  On 20 August 1982, the applicant was notified that charges were pending against him for falsely pretending to a bank on 17 December 1981 that his acting commander had signed a statement which was required for him to obtain a loan; willfully disobeying a lawful order from his superior commissioned officer on
17 December 1981; dishonorably failing to pay a debt to a gas company on
23 November 1981; dishonorably failing to pay a debt to an individual from
5 February 1982 until 15 August 1982; dishonorably failing to pay a debt to a bank from 26 February 1982 until 15 August 1982; dishonorably failing to pay a debt to a bank from 14 April 1982 until 15 August 1982; and dishonorably failing to pay a debt to a bank from 12 April 1982 until 15 August 1982.

11.  The applicant acknowledged receipt of the notification on 26 August 1982 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. Along with his request for discharge, the applicant submitted a statement in his own behalf in which he contended that the charges and specifications alleged against him would have easily been handled at a lower level by the commander before they became serious enough to warrant a court-martial.  He contended that his problems required the right kind of guidance and leadership from his commander, first sergeant, and supervisors.  He stated that he needed understanding and real help and instead, he got adverse personnel actions.  He stated that the Army realized that his leaders were inadequate and relieved them from their command and first sergeant positions.  

12.  In the statement the applicant went on by stating that he honestly believed that the situation that he found himself in was caused, at least in part, by his chain of command and their active pursuit of his downfall.  He states that he was basing his beliefs on the fact that the members of his unit had problems and that they had no one who they could trust, which resulted in two suicides in the past 10 months.  The applicant concluded by stating that being furnished a discharge under other than honorable conditions was not fair as he had served in the Army for 6 years.  He stated that he had a wife and a child and that he intended to pick up the pieces of his life once he was discharged.

13.  The appropriate authority approved the applicant's voluntary request for discharge on 30 August 1982.  Accordingly, on 8 September 1982, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 6 years, 3 months, and 18 days of net active service this period and he was furnished an Other Than Honorable Conditions Discharge Certificate.

14.  On 10 November 1982, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge to a general, under honorable conditions discharge.  On 28 April 1983, the ADRB denied his petition to upgrade his discharge.

15.  The letter from the VA that the applicant submitted in support of his application, dated 16 August 1989, notified him that his military service for which he was obligated at the time of his entry on 21 May 1976 to 20 May 1980 was considered honorable for VA purposes; however, his discharge on 8 September 1982 constituted a bar to the payment of benefits based on the period of service beginning 21 May 1980.  In the letter the applicant was informed of his VA entitlements and he was told of the avenue that he could take if he believed the VA decision concerning his discharge was incorrect.

16.  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 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 is normally considered appropriate.

17.  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.  

18.  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 under other than honorable conditions should be upgraded to a general, under honorable conditions or an honorable discharge based on his overall record of service.

2.  However, his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

3.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant's contentions have been noted.  However, his contentions are not substantiated by the evidence of record.  His records show that he had NJP imposed against him on five separate occasions and he also had court-martial charges pending against him as a result of his several acts of misconduct.  Considering his overall record of service and his numerous acts of indiscipline, it does not appear that the type of discharge that he received was too harsh or unjust.

5.  The fact that the VA has determined that his service from 21 May 1976 to 20 May 1980 is considered as honorable for VA purposes is not a sufficient basis for upgrading his discharge when considering the nature of his offenses and that fact that at the time of his discharge his service was not honorable.

6.  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.

7.  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.



      _________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)                                         AR20080018387



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ABCMR Record of Proceedings (cont)                                         AR20080018387



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