IN THE CASE OF:	  

		BOARD DATE:	       10 FEBRUARY 2009

		DOCKET NUMBER:  AR20080018567 


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

2.  The applicant states, in effect, that his mother had a stroke and he requested a compassionate reassignment; however, it was denied.  His mother passed away in 2004 and the hardship no longer exists.  He would like to serve his country again.

3.  The applicant provides no 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, though somewhat incomplete, show that he enlisted in the Regular Army in Atlanta, Georgia on 24 June 1982 for a period of 4 years, training as a radio teletype operator, and a cash enlistment bonus.

3.  He completed his basic training at Fort Jackson, South Carolina and his advanced individual training at Fort Gordon, Georgia before being transferred to Fort Stewart, Georgia for his first permanent duty assignment.  He was advanced to the pay grade of E-4 on 24 June 1983.

4.  On 5 March 1984, he was transferred to Germany for assignment to a field artillery battery.  For reasons not fully explained in the available records, he was attached to Fort Meade, Maryland on 17 October 1984, pending a compassionate reassignment.  He remained at Fort Meade until 19 February 1986, when he was transferred for an assignment to Greece.

5.  On 18 March 1986, nonjudicial punishment was imposed against the applicant for the wrongful use of marijuana.  His punishment consisted of a reduction to the pay grade of E-3, a forfeiture of pay for 2 months (suspended for 6 months), and extra duty.

6.  His records show that he was counseled on several occasions regarding his writing checks with insufficient funds.

7.  His records also show that he went absent without leave on 13 November 1987 and was placed in military confinement on 8 December 1987.

8.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, his records do contain a duly constituted report of separation (DD Form 214) signed by the applicant which shows that he was discharged under other than honorable conditions on 28 December 1987, under the provisions of Army Regulation     635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  He had served 5 years, 6 months and 3 days of total active service.

9.  There is no evidence in the available records to show that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  At the time of separation, an under other than honorable conditions discharge was normally considered appropriate.  

11.  Paragraph 3-7a of Army Regulation 635-200 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.

12.  Paragraph 3-7b also 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.  In the absence of evidence to the contrary, it must be presumed that 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 courtmartial, was administratively correct and in conformance with applicable regulations and that there were no violations of any of the applicant’s rights.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service to avoid a punitive discharge and a felony conviction on his records.

3.  The applicant’s contentions have been noted.  However, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of service.  His service simply does not rise to the level of a discharge under honorable conditions.


4.  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 this 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.



      ________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)                                         AR20080018567



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ABCMR Record of Proceedings (cont)                                         AR20080018567



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