IN THE CASE OF:	  

		BOARD DATE:	        30 June 2009

		DOCKET NUMBER:  AR20090003558 


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 be upgraded. 

2.  The applicant states, in effect, that both his parents died within a year of each other rendering him incapable of completing his tour of service.  He states he suffers from post-traumatic stress disorder because of his time in the service and needs his discharge upgraded for medical benefits.  

3.  The applicant did not provide any supporting documents with 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 military personnel record shows he enlisted in the Regular Army on 20 May 1980 for a 3-year period.  He successfully completed basic combat and advanced individual training and was awarded the military occupational specialty (MOS) 91B (Medical Specialist).

3.  On 17 September 1980, the applicant was assigned to Headquarters and Headquarters Company, 2nd Battalion, 32nd Armor in Germany.  

4.  On 7 February 1982, the applicant was issued emergency permanent change of station orders and was reassigned to Headquarters Command, U.S. Army Training Center and Fort Dix, New Jersey on or about 17 March 1982.

5.  The applicant's service records reveal a disciplinary history that includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for wrongful possession of a controlled substance - marijuana, absent from his appointed place of duty, and failure to go at the time prescribed to his appointed place of duty. 

6.  Court-martial charges were preferred by the commander of Headquarters Company, U.S. Army Training Center and Fort Dix, New Jersey.  The applicant was charged with being absent without leave from on or about 0800 hours on 3 May 1982 to on or about 1300 hours on 4 May 1982 and violation of a lawful general regulation, to wit borrowing money from a trainee. 

7.  On 25 June 1982, the applicant consulted with legal counsel and was 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 that were available to him.  The applicant then voluntarily requested discharge for the good of the service, in lieu of trial by court-martial

8.  On 25 June 1982, the applicant voluntarily requested discharge for the good of the service.  He acknowledged that he was making the request of his own free will, he understood the elements of the offenses he was charged with, and that he was guilty of at least one of the offenses with which he was charged.  He further acknowledged that he was afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged that he was advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate, that he would be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

9.  A captain of the Judge Advocate Corps countersigned the applicant's statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Code of Military Justice; of the possible effects of discharge under other than honorable conditions, if his request is approved; and of the procedures and rights available to him.

10.  The applicant submitted a statement, dated 25 June 1982, with his request for discharge requesting a discharge better than under other than honorable conditions.  He states, in effect, that he is a trained Army medical specialist and that he also completed his General Education Diploma while stationed in Germany because he desired to help people who could not help themselves.  

	a.  He states, in effect, that on 4 February 1982 his father suffered a massive heart attack and died two days later.  He became the sole provider for his mother and his own young children plus assumed responsibility for his father's debts.   

	b.  He states, in effect, that on 8 March 1982, he reported to Fort Dix per emergency permanent change of station orders to work in his primary MOS 91B. His MOS was over strength on post.  His first duty assignment was as a clerk in the post in and out processing center, and then he served as a clerk supervisor at the post initial receiving point.  He states he worked outside of his primary MOS and was frustrated because he was denied a duty assignment to the medical company located on post.  He states, in effect, that because the Army failed to let him work in his MOS he suffered deep emotional problems because he desired to aid and interact with Soldiers and said he could not do so while dealing with trainees. 

11.  On 28 June 1982, the appropriate authority approved the applicant's request for discharge in lieu of trail by court-martial and directed that he receive an under other than honorable conditions discharge and be reduced to the lowest grade.  

12.  On 8 July 1982, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) the applicant was issued at the time of his discharge confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, conduct triable by court martial.  His characterization of service was under other than honorable conditions.  This form confirms that he completed a total of 2 years, 1 month, and 18 days of creditable active military service.

13.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
14.  Army Regulation 635-200 (Enlisted Personnel Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part that a member who had committed an offense or offenses for which the authorized punishment included 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.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.  

15.  Army Regulation 635-200 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.  

16.  Army Regulation 635-200 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.

17.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the death of his parents within one year of each other and the burden of family responsibilities impaired his ability to complete his active duty commitment.   

2.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  

3.  The applicant voluntarily requested discharge under the provisions of Army Regulation 632-200, chapter 10, in lieu of trial by court-martial.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  He also acknowledged that he could receive an under other than honorable conditions discharge, and that he may be ineligible for many or all Army benefits to include benefits administered by the VA.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  The applicant has not submitted any evidence to support his contention that his family responsibilities interfered with his duty performance while he was on active duty.  In fact, the applicant's letter to the separation authority portrayed himself as a disgruntled Soldier who would not perform duties as assigned by superior officers and solely sought to work in his MOS within a medical company. Soldiers are often trained in a particular MOS and then based on the needs of the military installation; they can be appointed to a duty MOS with similar occupational skills by the installation commander's personnel staff.  

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 that requirement.  The Board does not upgrade discharges based on the passage of time or to allow entitlement to Veteran's benefits at the Federal or State level.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to either an honorable or to a general, under honorable conditions 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)                                         AR20090003558



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ABCMR Record of Proceedings (cont)                                         AR20090003558



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