IN THE CASE OF:	

		BOARD DATE:	21 April 2009  

		DOCKET NUMBER:  AR20090000822 


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.

2.  The applicant states he was pressured into taking his discharge while he was in the hospital.  He adds that he has settled into life and seeks to undue past mistakes.

3.  The applicant does not provide any additional documents 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 military records show that he enlisted in the Regular Army on 9 September 1981 and was awarded military occupational specialty (MOS) 31V (tactical communications systems operator/mechanic).

3.  The applicant's discharge packet is not contained in his military records.  However, his records contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on
3 September 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 by reason of administrative discharge – conduct triable by court-martial.  He was discharged with a character of service of under other than honorable conditions.

4.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that Board's
15-year statute of limitations.

5.  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.

6.  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.

7.  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.  Without the applicant's discharge packet, there is no indication of what charges were preferred against him or the circumstances surrounding his request for discharge.
2.  However, given the applicant's DD Form 214 indicates that he was discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge for the good of the service.  In doing so, the applicant would have consulted with legal counsel and would have been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights available to him.  Subsequent to receiving this legal counsel, the applicant would have voluntarily requested discharge for the good of the service and made his request of his own free will and not have been subjected to any coercion whatsoever by any person.  He would have acknowledged his understanding that by requesting discharge, he was admitting that he was guilty of the charge(s) against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He would also have acknowledged his understanding that he could receive an under other than honorable conditions discharge, and of the possible effects of that discharge, which could include his being ineligible for many or all benefits administered by the Veterans Administration, that he could be deprived of his rights and benefits as a veteran under both Federal and State law, and that he could encounter substantial prejudice in civilian life as a result of receiving an UOTHC discharge.

3.  As such, a presumption of regularity, that what the Army did was correct, must be made in this case.  The burden to prove otherwise rests with the applicant.

4.  In view of the foregoing, there is no basis for granting the applicant's request for a discharge upgrade to either a general, under honorable conditions 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.



      _________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)                                         AR20090000822



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ABCMR Record of Proceedings (cont)                                         AR20090000822



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