IN THE CASE OF:	

		BOARD DATE:	  31 March 2009

		DOCKET NUMBER:  AR20080019773 


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, upgrade of his under other than honorable conditions discharge to a general, under honorable conditions discharge.

2.  The applicant states that his discharge needs to be upgraded to a general discharge for employment and veterans benefits purposes.  His current status is a hindrance to finding a job.

3.  The applicant provides no additional documentary evidence in support of this 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 on 29 May 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13B (cannon crewman).  The highest rank he attained while serving on active duty was private first class (PFC)/grade E-3.

3.  The available records do not show any significant acts of achievement or valor during his military service.  

4.  Available evidence shows the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on six occasions between 5 September 1979 and 18 March 1981:

   a.  on 5 September 1979, while posted as sentinel, he was found asleep and for leaving his post before he was regularly relieved;
   
   b.  on 7 September 1979, for failing to go at the time prescribed to his appointed place of duty on 6 September 1979;
   
   c.  on 24 March 1980, for failing to go at the time prescribed to his appointed place of duty on 12 and 15 March 1980;
   
   d.  on 15 April 1980, for failing to go at the time prescribed to his appointed place of duty on 13 April 1980;
   
   e.  on 15 August 1980, for failing to go at the time prescribed to his appointed place of duty on 10 August 1980; and
   
   f.  on 18 March 1981, for failing to go at the time prescribed to his appointed place of duty and for disobeying a lawful order from his superior noncommissioned officer on 8 March 1981.

5.  On 20 June 1980, the applicant was convicted by a summary court-martial for being disrespectful in deportment toward a superior noncommissioned officer; destroy by smashing into pieces one chair; yelling and kicking doors; wrongfully using provoking words on 4 June 1980; and for escaping from correctional custody on 23 May 1980.

6.  Court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 12 June to 29 September 1981.  On 7 October 1981, having consulted with legal counsel, the applicant voluntarily requested 
discharge 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 acknowledged that he was making the request of his own free will and that he had been advised of the implications that are attached to it.

7.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged that he had consulted with counsel for consultation who fully advised him of the nature of his rights under the Uniform Code of Military Justice.  He further acknowledged he understood that if his discharge request was approved, he may be discharged under conditions other than honorable and that he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by 
the Veterans Administration (VA) [now known as the Department of Veterans Affairs], and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 21 October 1981, the intermediate commanders recommended approval of the applicant's voluntary request for discharge.  They recommended the applicant be issued an under other than honorable conditions discharge.

9.  On 29 October 1981, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On
3 December 1981, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant confirms he completed a total of 2 years, 1 month, and 27 days of creditable active military service.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.

12.  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 accepted NJP on six occasions, he was convicted by a summary court-martial, and a charge was preferred against him for AWOL for 109 days.  This pattern of serious misconduct warranted a discharge under other than honorable conditions.

2.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant would have admitted guilt and requested discharge in lieu of court-martial.

3.  Based on the applicant's record of indiscipline, his 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, he is not entitled to either a general or an honorable discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  The Board does not upgrade properly issued discharges solely to establish entitlement to benefits from other agencies or to improve employment opportunities.

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)                                         AR20080019773



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ABCMR Record of Proceedings (cont)                                         AR20080019773



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