BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090004696 


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 an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states that his discharge resulted due to a lack of communications.  He was hurt while on active duty and he was hospitalized at Walter Reed Army Medical Center. 

3.  The applicant did not provide any additional documentary evidence 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 records show he enlisted in the Regular Army for a period of 4 years on 17 August 1988.  He completed basic combat and advanced individual training and was awarded military occupational specialty 31C (Single Channel Radio Operator).  The highest rank/grade the applicant attained during his military service was private (PV2)/E-2.

3.  The applicant's records further show he was awarded the Army Service Ribbon and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 14 August 1989, court-martial charges were preferred against the applicant for one specification of failing to go at the prescribed time to his appointed place of duty on or about 14 July 1989; one specification of being disrespectful in language toward a commissioned officer on or about 14 July 1989; three specifications of disobeying a lawful order from a noncommissioned officer (NCO) on or about 14, 15, and 16 July 1989; one specification of being disrespectful in language towards a NCO on or about 14 July 1989; one specification of disobeying a lawful order from his company first sergeant on or about 14 July 1989; and one specification of communicating a threat to an NCO.

5.  On an unknown date in 1989 and pursuant to his pleas, the applicant was convicted by a special court-martial of one specification of disobeying a commissioned officer, one specification of being disrespectful towards a superior NCO, and two specifications of disobeying a NCO.  The court sentenced him to a bad conduct discharge, confinement for 4 months, a forfeiture of $466.00 pay for 4 months, and a reduction to private (PVT)/E-1.  The convening authority approved the sentence on 13 November 1989.

6.  On 31 December 1990, the U.S. Army Court of Military Review reviewed the record and found that the applicant's plea was improvident.  The court accordingly ordered the findings and sentence set aside and a rehearing of the applicant's case. 

7.  On 11 February 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice, of the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 

9.  On 12 and 14 February 1991, the applicant’s immediate, intermediate, and senior commanders recommended approval of the applicant’s separation with the issuance of an under other than honorable conditions discharge.  

10.  On 15 February 1991, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he receive an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  On 21 February 1991, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed 2 years, 2 months, and 13 days of creditable active military service.

11.  On 15 February 1991, subsequent to the applicant's approved discharge under the provisions of Chapter 10 of Army Regulation 635-200, Headquarters, U.S. Army Training Center and Fort Dix, Fort Dix, NJ published Special Court-Martial Order Number 10 announcing the dismissal of the applicant's charges and sentence and restoration of all of his rights, privileges, and property of which he had been deprived by virtue of the findings of guilty. 

12.  There is no evidence in the applicant’s records that he 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 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is 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.  The applicant contends that his under other than honorable conditions discharge should be upgraded.  

2.  There is no indication in the applicant's available records that he was injured and/or hurt during his military service or that he was hospitalized for any injury.  Additionally, there is no evidence in his records that shows his alleged injury/illness caused his misconduct.

3.  The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the applicant’s rights were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  There is no evidence in the available records, nor did the applicant provide any documentation, to warrant an upgrade of his discharge.  In order to justify correction of a military record the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  


5.  Based on the applicant’s record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to either a general 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)                                         AR20090004696



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ABCMR Record of Proceedings (cont)                                         AR20090004696



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