IN THE CASE OF:	  

		BOARD DATE:	  30 June 2009

		DOCKET NUMBER:  AR20090000601 


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 (UOTHC) be upgraded to an honorable discharge (HD). 

2.  The applicant states his superiors were insistent on making an example of him because he was a sergeant despite his prior immaculate record.  Under current standards he would not have received the discharge he did.  His youth, immaturity, and being newly married to a foreign national led to problems in his thinking and acting responsibly.  He has been a productive, hard-working member of society and is proud that two of his children have joined the Army. 

3.  The applicant provides copies of a personal statement, his DD Form 214 (Certificate of Release or Discharge from Active Duty), DA Form 2-1 (Personnel Qualification Record), Certificate of Promotion, an Honorable Discharge Certificate, a Diploma from the Fuel and Electrical Systems Repair Course, orders promoting him from a specialist four to sergeant, five letters of commendation, three Certificates of Achievement, an Army Safety Award, and  16 letters of support from friends, family, and employers.

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 enlisted in the Army Reserve (USAR) under the Delayed Entry Program on 21 October 1976 and entered active duty in the Regular Army on 13 October 1977.  On 31 July 1980, while serving in Germany, he was honorably discharged for the purpose of immediate reenlistment.

3.  During his first enlistment, the applicant completed a general education diploma (GED) program and was awarded a High School Diploma.  He received two Letters of Commendation, two Certificates of Achievement, a U.S. Army Safety Award, and a National Safety Council Certificate of Appreciation.  On 16 October 1980, he was awarded the Good Conduct Medal.

4.  The record shows the applicant married a German National on 24 April 1981 and was promoted to sergeant (E-5) effective 1 December 1981.

5.  On 1 March 1982, a Report of Suspension of Favorable Personnel Actions (FLAG) was initiated as the applicant was under investigation.

6.  Court-martial charges were preferred against the applicant for four violations of the Uniform Code of Military Justice; Article 86, being absent without leave from 9 through 13 April 1982; Article 92, violation of a lawful general regulation, possession of a proscribed smoking device; Article 121, larceny of a value of $581.00; and Article 134, possession of marijuana.

7.  On 19 May 1982, after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished an Under Other Than Honorable Conditions (UOTHC) Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

8.  The discharge authority approved the separation action and directed the applicant be reduced to the lowest enlisted grade and issued an under other than honorable discharge certificate.

9.  The applicant was discharged on 17 June 1982.  He had 4 years, 8 months, and 1 day of creditable active service with 4 days of lost time.

10.  On 7 May 1984, the Army Discharge Review Board (ADRB) denied the applicant's request to upgrade his discharge or change his narrative reason for discharge.

11.  The letters of character from friends, family, and employers all describe the applicant using terms such as; dedicated, responsible, hardworking, reliable, trustworthy, kind, considerate, and willing to help in difficult situations.  

12.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 3, as in effect at that time, outlines the criteria for characterization of service.  Paragraph 3-7a states that an honorable discharge (HD) is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  Paragraph 3-7a(1) in pertinent part states:  "A Soldier will not necessarily be denied an honorable discharge solely by reason of a specific number of convictions by court-martial or actions under the UCMJ Article 15."  "It is a pattern of behavior and not the isolated instance which should be considered the governing factor in determination of character of service."  Paragraph 3-7b states that a general discharge (GD) is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states that an under other than honorable conditions (UOTHC) discharge is issued when there is one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  Paragraph 3-7c(7) specifically addresses issuance of an UOTHC for discharges issued under the provisions of chapter 10 of this regulation; and

	b.  Chapter 10 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.
13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses of larceny and illegal drug possession. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant states his superiors were insistent on making an example of him because he was a sergeant despite his prior immaculate record.  Under current standards he would not have received the discharge he did.  His youth, immaturity, and being newly married to a foreign national led to problems in his thinking and acting responsibly.  He has been a productive, hard-working member of society and is proud that two of his children have joined the Army. 

2.  The applicant did, in fact, have an excellent first enlistment as noted by his completion of a GED, award of the Good Conduct Medal, his Letters of Commendation, Certificates of Achievement, U.S. Army Safety Award, and National Safety Council Certificate of Appreciation.  The applicant should be justifiably proud of this period of service, the Honorable Discharge Certificate issued to reflect that service, and that two of his children have chosen to also serve in the Army.  

3.  Unfortunately, his behavior took a significant negative turn resulting in the charges that led to his UOTHC discharge.  

4.  Notwithstanding the applicant's claiming youth and immaturity, he demonstrated the capacity to serve by completion of over 4 years of service before the incidents that led to his discharge .

5.  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 court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

6.  The letters attesting to the applicant’s good character and post-service conduct are noted, but they are insufficient as the sole basis for relief because they do not appear to outweigh the misconduct that led to the applicant’s separation. 

7.  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.




      	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)                                         AR20090000601





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ABCMR Record of Proceedings (cont)                                         AR20090000601



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