IN THE CASE OF:	

		BOARD DATE:	  2 April 2009

		DOCKET NUMBER:  AR20080019488 


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 to an honorable discharge.

2.  The applicant states, in effect, that he served his country honorably for 3 years and that he suffers from medical complications due to his military service and is seeking medical benefits.    

3.  The applicant did not provide any supporting documents with 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 record shows he enlisted in the Regular Army on 7 October 1987 for a period of 4 years.  Records show that he completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63B (Light Wheel Vehicle Mechanic).  The highest rank he attained while serving on active duty was private first class (PFC)/pay grade E-3.

3.  On 25 April 1990, the applicant was assigned to A Battery, 6th Battalion, 27th Field Artillery, 214th Field Artillery Brigade, Fort Sill, Oklahoma.

4.  On 12 September 1990, court-martial charges were preferred against the applicant for wrongfully using cocaine, failing to go at the time prescribed to his appointed place of duty on two separate occasions, making false statements under oath, and falsely altering his military identification card application.

5.  On or after 12 September 1990, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he was charged with, and that he was guilty of the offense with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

6.  On 2 October 1990, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that the applicant be furnished an under other than honorable conditions discharge.

7.  On 5 October 1990, the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He had completed
2 years, 11 months, and 29 days of active service that was characterized as under other than honorable conditions.  He had no time lost.

8.  There is no record that shows the applicant petitioned the Army Discharge Review Board (ADRB) for a discharge upgrade within its 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which 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 trail by court-martial.  A discharge under other than honorable conditions was normally considered appropriate when discharge was ordered under this authority.

10.  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.  

11.  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 because he served honorably for 3 years.  He further contends that during his military service he developed various medical aliments during the performance of his duties.

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

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 Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trail by court-martial.  In this case, the evidence of record shows that the applicant voluntarily 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 the misconduct that resulted in his discharge.

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 a general, under honorable conditions or an honorable discharge.

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)                                         AR20080019488



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ABCMR Record of Proceedings (cont)                                         AR20080019488



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