IN THE CASE OF:	  

		BOARD DATE:	       30 JULY 2009

		DOCKET NUMBER:  AR20090004480 


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 under other than honorable conditions be upgraded to honorable.   

2.  The applicant states that he did not commit the offenses.  There was no witness available during the hearing.  He has been a model citizen since his discharge.  He believes that he served his country as a young man and is now in need of medical and school benefits to better himself and to provide for his children.

3.  The applicant provides, in support of his application, copies of his DD Form 214 and five character reference statements.  

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.  On 31 March 1983, the applicant enlisted in the Regular Army in the rank of private first class, pay grade E-3.  He completed his initial training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).

3.  On 5 September 1983, the applicant was assigned duty as a cook with the 3rd Battalion, 47th Infantry Regiment, located at Fort Lewis, Washington.

4.  On 13 December 1984, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for willfully and unlawfully altering a DD Form 689 (Sick Slip).  His punishment included reduction to pay grade E-2 (suspended), a forfeiture of $334.00 pay per month for 1 month and 7 days of extra duty.  The applicant did not appeal the punishment.

5.  On 7 January 1985, the applicant failed to obey his command sergeant major.  That portion of the suspended punishment imposed on 13 December 1984 was subsequently vacated.

6.  On 10 May 1985, the applicant accepted NJP for failure to go to his appointed place of duty, for dereliction of duty, and for wrongful use of marijuana.  The punishment included reduction to pay grade E-1, a forfeiture of $310.00 pay for
2 months and 45 days of restriction and extra duty.  The applicant's appeal of the punishment was denied.

7.  On 7 June 1985, charges were preferred against the applicant under the UCMJ for violating Article 86 for being absent without leave (AWOL), on 16 May 1985, and during the period from on or about 21 May to 6 June 1985.  He was also charged with three specifications of violating Article 112a, wrongful distribution of marijuana.

8.  On 1 October 1985, 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.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10. 

9.  In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

10.  On 4 October 1985, the separation authority approved the applicant’s request for discharge and directed that he be issued a DD Form 794A (Discharge Certificate Under Other Than Honorable Conditions).  On 11 October 1985, the applicant was discharged accordingly.  He had completed a total of 2 years, 
6 months and 5 days of creditable active military service and had accrued 5 days of time lost due to being AWOL.

11.  The five character reference statements the applicant provided from his mother, two reverends and two friends, essentially report the applicant is a good young man who is working and is in need of help.

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

13.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Under the UCMJ, the maximum punishment allowed for violation of Article 112a, for distribution of marijuana, is a dishonorable discharge and confinement for 15 years.

15.  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.




16.  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 contends that he served his country and has been a model citizen since his separation.  He wants his discharge upgraded because he is in need of medical and school benefits. 

2.  The applicant has not provided any documentary evidence showing that he did not commit the offenses he was charged with committing or that he was denied due process. 

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The applicant’s claim of good post-service conduct was considered.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  The applicant's desire to obtain veterans medical and educational benefits is not justification for an upgrade of his discharge.

6.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 the aforementioned requirement.

8.  In view of the foregoing, there is no basis for granting the applicant's request.



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)                                         AR20090004480



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ABCMR Record of Proceedings (cont)                                         AR20090004480



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