IN THE CASE OF:	  

		BOARD DATE:	      7 APRIL 2009

		DOCKET NUMBER:  AR20090000887 


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. 

2.  The applicant states he and his company commander did not get along and he felt that his court-martial was unfair.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and medical statements in support of his application.

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 7 October 1980.  He was trained in, awarded, and served in military occupational specialty (MOS) 11C (Indirect Fire Infantryman).  

3.  On 14 October 1981, nonjudicial punishment (NJP) was imposed against the applicant for willfully disobeying a lawful order from a superior noncommissioned officer.  His punishment consisted of reduction to the grade of E-1 (suspended for 60 days), 14 days restriction, 14 days extra duty, and a $110.00 fine.

4.  On 2 November 1981, the applicant's suspension of the punishment of reduction to the grade of E-1 was vacated.

5.  On 17 August 1982, charges were preferred against the applicant for being absent without leave (AWOL) from his unit from 15 June 1982 to 15 August 1982.

6.  On 17 August 1982, the applicant consulted with counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

7.  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 (VA) 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 elected not to submit a statement in his behalf.

8.  On 27 August 1982, the captain in command of the Personnel Control Facility, U.S. Army Field Artillery Center, Fort Sill, OK 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. 

9.  On 30 August 1982, the major general in command of Headquarters, U.S. Army Field Artillery Center, Fort Sill, approved the applicant’s discharge under the provisions of chapter 10 of Army Regulation 635-200 with the issuance of an Other Than Honorable Discharge Certificate.



10.  The applicant's DD Form 214 shows that he was discharged with a characterization of service of under other than honorable conditions on 
10 September 1982.  He had completed 1 year, 9 months, and 4 days of creditable service.  

11.  The applicant provided two medical statements that show he was seen on
2 October 2008 and on 28 October 2008 at the County of San Diego Health and Human Services Agency.  He was diagnosed with headache, seizures, and memory loss. 

12.  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.

13.  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.  At the time, a discharge under other than honorable conditions discharge was normally considered appropriate. 

14.  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.

15.  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.  Evidence of record shows the applicant’s voluntary 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.  There is no evidence the applicant was actually court-martialed or that a conflict with his commander was the basis for his administrative discharge.

2.  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.  

3.  The applicant's record of service included an NJP, a vacated suspension of reduction, and preferred charges for over 60 days of AWOL.  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 the applicant's 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)                                         AR20090000887



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ABCMR Record of Proceedings (cont)                                         AR20090000887



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