IN THE CASE OF:	

		BOARD DATE:	       28 APRIL 2009

		DOCKET NUMBER:  AR20090000247 


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 an upgrade of his discharge and correction of his rank/grade on his DD Form 214 (Certificate of Release or Discharge from Active Duty) from private (PV1)/E-1 to private first class (PFC)/E-3.

2.  The applicant states that he enlisted in the Regular Army as a linguist; however, the Army breached his contract by using him as an infantry Soldier.

3.  The applicant did not provide any additional documentary evidence in support of his request.

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 U.S. Army Reserve under the Delayed Entry Program (DEP) on 8 May 1989.  He completed and authenticated a DA Form 3286-60 (Statement for Enlistment - U.S. Army Enlistment Options) acknowledging the following:

	a.  If I am enlisting for an option which guarantees school training I am assured of training in military occupational specialty within Career Management Field 11 Infantry;

	b.  My term of enlistment into the Regular Army is for 4 years and 0 weeks; and

	c.  I further acknowledge that I am enlisting for the following enlistment option(s):

		(1)  Option 9-3, U.S. Army Training of Choice Enlistment Option; and

		(2)  Option 9-317, U.S. Army Cash Bonus Enlistment Option.

3.  On 12 May 1989, the applicant was discharged from the DEP and subsequently enlisted in the Regular Army in the rank of PFC/E-3 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11M (Fighting Vehicle Infantryman).  He was subsequently assigned to the 4th Battalion, 16th Infantry, Germany.

4.  The applicant’s records further show he was awarded the Army Service Ribbon, the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16), and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His records do not reflect any record of achievements or acts of special recognition during his military service.

5.  On 28 November 1989, the applicant departed his unit in an absent without leave (AWOL) status.  He was subsequently dropped from the Army rolls on 27 December 1989.

6.  On 18 January 1990, the applicant was apprehended by civil authorities in Clearwater, FL, for the civil offenses of dealing in stolen property, grand theft, and burglary of a residence, and was confined in the Pinellas County Jail, FL.  He subsequently appeared in a Florida District Court on 20 June 1990, was ordered to make restitution, and was returned to military control at Fort Knox, KY.

7.  On 29 June 1990, court-martial charges were preferred against the applicant for one specification of being AWOL during the period on or about 28 November 1989 through on or about 20 June 1990.

8.  On 29 June 1990, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by 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.

10.  On 10 July 1990, the applicant's immediate commander recommended approval of the applicant’s discharge with an under other than honorable conditions character of service and remarked that the applicant’s conduct had rendered him triable by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge.

11.  On 10 July 1990, the applicant’s intermediate commander also recommended approval with an under other than honorable conditions character of service.

12.  On 16 July 1990, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions character of service and be reduced the lowest enlisted grade.

13.  On 19 July 1990, Headquarters, U.S. Army Personnel Control Facility, U.S. Armor Center and Fort Knox, Fort Knox, KY, published Orders 133-5 directing the applicant’s reduction to PV1/E-1 effective 16 July 1990 as directed by the separation authority.
14.  On 29 August 1990, the applicant was discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged in accordance with chapter 10 of Army Regulation 635-200 for the good of the service in lieu of trial by court-martial in the rank/grade of PV1/E-1 with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 8 months and 26 days of creditable active military service and had 204 days of lost time.

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

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 submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

17.  Chapter 1 of Army Regulation 635-200 states, in pertinent part, that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

18.  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.

19.  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 should be upgraded and his rank should be corrected.

2.  Contrary to the applicant’s contention that he enlisted as a linguist and that the Army breached the enlistment contract, the evidence of records shows that the applicant enlisted for an infantry MOS and a cash bonus.  There is no indication or evidence in his enlistment contract that he was promised and/or guaranteed any other options.  Additionally, there is no evidence in the available records and the applicant did not provide any substantiating evidence that shows his AWOL was a result of the alleged MOS issue.  Even if the alleged MOS issue were true, the applicant had many legitimate avenues through which he could have received assistance or relief had he chosen to use them.

3.  The applicant’s record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  Upon the approval of his request and direction that he be discharged with a discharge under other than honorable conditions, he was properly reduced to PV1/E1.  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 his overall record of service.

4.  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.  Based on his record of indiscipline, the applicant's service clearly did 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 either a general or an honorable discharge.

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)                                         AR20090000247



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ABCMR Record of Proceedings (cont)                                         AR20090000247



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