IN THE CASE OF:	  

		BOARD DATE:	       9 APRIL 2009

		DOCKET NUMBER:  AR20090000850 


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, that his under other than honorable conditions discharge be upgraded to under honorable conditions.

2.  The applicant states that prior to receiving his under other than honorable conditions discharge he was in the process of receiving a hardship discharge.  He explains that his father had a stroke and his mother needed him at home to take over the family business.  He maintains that he, the barrack's Drill Sergeant, and the sergeant major (SGM) had a conference concerning his discharge.  He adds that the SGM gave him the option to leave the service with a chapter 10, under honorable conditions, discharge, which he accepted.  The applicant opines that he was wrongly discharged and is being denied his benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and his self-authored statement.

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 record shows he enlisted in the Regular Army and entered active duty on 10 July 1979.  He was trained in and awarded military occupational specialty 11B (Infantryman).

3.  On 1 April 1980, the applicant requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  The applicant signed his request for discharge which showed that he was making the request under his own free will; that he was afforded the opportunity to speak with counsel; that he may be furnished an Under Other than Honorable Conditions Discharge Certificate; that he may be deprived of many or all Army benefits; that he may be ineligible for many or all Veterans Administration benefits; and that he may expect to encounter substantial prejudice in civilian life because of an Under Other than Honorable Conditions Discharge Certificate.  The applicant submitted a statement on his behalf.

4.  In the applicant’s statement dated 31 March 1980, he said he had encountered a lot of trouble at home.  He offered that in October he requested a hardship discharge based upon his father's medical problems.  He added that his father had a stroke and one side of his body was paralyzed.  He maintained that his mother was required to do all the work with no one to assist her since he was the only son and not available.  The applicant stated that the problems at home caused him to be really depressed and he turned to marijuana to escape his depression, which he realized was wrong.  He continued by explaining that he did everything that he could in seeking a hardship discharge.  However, he did not receive any assistance until after his father died and he was placed on emergency leave to attend his funeral.  The applicant said that there was no one to take care of his mother at home and she suffered with a heart condition.  He opined that he could not adjust to the military with everything on his mind and therefore, he requested a chapter 10 discharge.

5.  The captain in command of Headquarters and Headquarters Company, 1st Infantry Training Brigade, Fort Benning, Georgia, recommended approval of the applicant’s request for discharge for the good of the service.  He recommended that the applicant be issued a discharge under other than honorable conditions.

6.  On 4 April 1980, the colonel in command of Headquarters, 1st Infantry Training Brigade, Fort Benning, Georgia, recommended approval of the applicant's chapter 10 request with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

7.  On 7 April 1980, the Staff Judge Advocate (SJA) advised the commanding general of the appropriate action to be taken regarding the applicant's request for discharge for the good of the service submitted pursuant to the provisions of chapter 10, Army Regulation 635-200.  The SJA said the applicant was pending trial by special court-martial empowered to adjudge a bad conduct discharge for the alleged offenses of wrongfully possessing and wrongfully transferring marijuana, violations, respectively, of Article 134, Uniform Code of Military Justice.  He said the applicant's request had been reviewed and it was determined to be legally sufficient.

8.  On 7 April 1980, the acting commander, in command of the U.S. Army Infantry Center and Fort Benning, approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 14 April 1980, the applicant underwent a medical examination and a mental status evaluation in which he was found to be qualified for separation.

10.  The applicant's DD Form 214 shows that he was discharged with a characterization of service as under other than honorable conditions on 18 April 1980.  The applicant had completed 9 months and 9 days of creditable service.

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

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 6 provides the criteria for separating enlisted members for dependency or hardship.  Paragraph 6-5d states, in pertinent part, that when members are under charges, in confinement, or have been recommended for elimination under the provisions of chapter 13 or 14, they will not be separated because of dependency or hardship until proper disposition is made of the case.  However, the application will be accepted and processed to final decision.

13.  Additionally, 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.  At the time, an Under Other Than Honorable Conditions Discharge was normally considered appropriate. 

14.  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 argues that he was in the process of receiving a hardship discharge prior to his chapter 10 discharge.  However, he provides no evidence to support his claim.  Further, the fact that the applicant was under charges and pending trial by court-martial prohibited him from being separated for hardship until his case was resolved.

2.  The evidence of record shows the applicant’s request for separation under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

3.  The applicant has failed to provide evidence to prove that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

4.  The applicant had completed 9 months and 9 days of active service at the time of his discharge and was pending trial by special court-martial for the alleged offenses of wrongfully possessing and wrongfully transferring marijuana. Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis to upgrade his 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)                                         AR20090000850



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ABCMR Record of Proceedings (cont)                                         AR20090000850



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