IN THE CASE OF:	  

		BOARD DATE:	        19 MARCH 2009

		DOCKET NUMBER:  AR20090000457 


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 fully honorable discharge.

2.  The applicant states, in effect, that he was a young private at the time and was not really involved in the group of individuals that were in trouble.  He goes on to state that he took a chapter discharge to avoid going to a court-martial.  He also states that he is 46 years of age and the jobs he is applying for require an honorable discharge and he feels that at this point in his life, it is an injustice to deny him employment.  He asks that the Board consider the troubled economic times we live in when making its decision.

3.  The applicant provides statements from military personnel who were close to the situation that were also included in his request for discharge.

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 was born on 14 August 1962 and enlisted in the Regular Army, on 3 May 1983, for a period of 2 years, training as a tactical wire operations specialist and assignment to Europe.

3.  He completed his basic training at Fort McClellan, Alabama and his advanced individual training (AIT) at Fort Gordon, Georgia before being transferred to Wiesbaden, Germany, on 10 October 1983, for assignment to a field artillery battery.  He was advanced to the pay grade of E-2 on 3 November 1983.

4.  On 21 February 1984, charges were preferred against the applicant for the wrongful possession and distribution of 2.91 grams of marijuana in the hashish form.

5.  On 6 March 1984, after consulting with defense counsel, the applicant submitted a request for discharge for the good of the service, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by             court-martial.  In his request he indicated that he understood the charges that had been preferred against him, that he was making the request of his own free will, without coercion from anyone, and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive an under other than honorable conditions discharge, and that he might be deprived of all benefits as a result of such a discharge.  He also elected to submit statements of support from his chain of command.  He provided the same statements that he submitted with this application.

6.  The appropriate authority (a major general) approved his request on 29 March 1984 and directed that he be discharged under other than honorable conditions.

7.  Accordingly, he was discharged under other than honorable conditions on 19 April 1984, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 11 months and 17 days of total active service.

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

9.  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.  An discharge under other than honorable conditions is normally considered appropriate.

10.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.  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.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  Accordingly, the type of discharge directed and the reasons therefore were appropriate considering all of the available facts of the case.

3.  The applicant’s record of service has been reviewed; however, his service is not sufficiently mitigating to warrant relief when compared to the nature of his misconduct.  His service simply does not rise to the level of a discharge under honorable conditions.

4.  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 in hopes of avoiding a punitive discharge and having a felony conviction on his records.  In doing so he admitted guilt to the charges against him.

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 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)                                         AR20090000457



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ABCMR Record of Proceedings (cont)                                         AR20090000457



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