IN THE CASE OF:	  

		BOARD DATE:	       17 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090005643 


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 upgrade of his under other than honorable conditions discharge.

2.  The applicant states he realizes that he made a mistake in his behavior, but he was under pressure and treated poorly by his superiors.  He maintains that he was called names, cussed-out, and he lost his temper.  He offers that he regrets his behavior and he has changed his life.  The applicant states that he never used a needle, or smoked marijuana or hashish during his service in the Army.  He adds that he should never have started drinking.  The applicant states that he has tried to live as a Christian and be a good example for the youth at his church. He offers that he served faithfully as a Soldier during his time in the military except for the last few months.  The applicant concludes that he does not feel like a veteran and wants to be able to say that he served proudly in the U.S. Army.

3.  The applicant provides 17 supporting statements, copies of his medical records, and his DD Form 214 (Report of Separation from Active Duty) 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 (RA) and he entered active duty on 8 January 1976.  

3.  On 13 April 1976, nonjudicial punishment (NJP) was imposed against the applicant for failing to obey a lawful order on 12 April 1976 by returning late from pass.  His punishment consisted of a forfeiture of $93.00 pay, and 14 days of restriction and extra duty.

4.  On 28 December 1976, NJP was imposed against the applicant for willfully disobeying a lawful order from a superior noncommissioned officer to perform guard duty on 7 November 1976.  His punishment consisted of a forfeiture of $100.00 pay, 14 days of restriction and extra duty, and reduction to the grade of private (PV2)/E-2 (suspended).

5.  On 18 August 1977, NJP was imposed against the applicant for failing to go to physical training formation at 0545 hours on10 August 1977; failing to go to the company formation at 0730 hours on 11 August 1977; and being disrespectful to a superior commissioned officer.  His punishment consisted of a reduction to the rank of PV2/E-2, a forfeiture of $175.00 pay for 2 months, and 20 days of restriction and extra duty.

6.  On 21 October 1977, NJP was imposed against the applicant for leaving his sentinel post on 5 October 1977 prior to being relieved.  His punishment consisted of a reduction to the rank of private (PV1)/E-1, a forfeiture of $87.00 pay, and 14 days of restriction and extra duty.

7.  On 13 December 1977, charges were preferred against the applicant for the following offenses:

   a.  Charge 1, Specification:  On 11 December 1977, behave with disrespect towards a superior commissioned officer;
   
   b.  Charge II, Specification:  On 11 December 1977, willfully disobeyed a lawful order from a superior commissioned officer;
   c.  Charge III, Specification 1:  On 11 December 1977, willfully disobeyed a lawful order from a superior noncommissioned officer;
   
   d.  Charge III, Specification 2:  On 26 November 1977, was disrespectful in language towards a superior commissioned officer;
   
   e.  Charge III, Specification 3:  On 26 November 1977, was disrespectful in deportment towards a superior commissioned officer;
   
   f.  Charge IV, Specification:  On 11 December 1977, unlawfully struck a sergeant first class in the chest with his fists; and
   
   g.  Charge V, Specification:  On 12 December 1977, wrongfully had in his possession one ounce more or less of marijuana.
   
8.  On 1 February 1978, 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).

9.  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 a discharge under other than honorable conditions,  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 a discharge under other than honorable conditions.  

10.  On 21 February 1978, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.

11.  The applicant's DD Form 214 shows that on 2 March 1978, he was discharged with a character of service of under conditions other than honorable conditions.  The applicant had completed 2 years, 1 month, and 17 days of creditable service with 8 days time lost.

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.  The 17 supporting statements submitted by the applicant speaks highly of the applicant's honesty and dependability.  Several statements submitted by Soldiers during his service in the military recalled the applicant's ability to perform his job and to stay out of trouble. Several members of the applicant's church attested to his outstanding performance as a deacon and his leadership abilities. The pastor stated that he appreciated the applicant and the man he has proved to be over the past 20 years.  The reverend offered that the applicant's first desire was to serve God.  Additionally, construction workers offered that they depend on the applicant's quality concrete work.

14.  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.

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 states that he served faithfully as a Soldier during his time in the military except for the last few months.  However, evidence of record shows that he received his first Article 15 three months after his enlistment and he had accumulated three more Article 15s prior to court-martial charges being preferred on 13 December 1977.

2.  Evidence of record further 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.  The applicant’s discharge accurately reflects his overall record of service.  

3.  Although the applicant has provided numerous supporting statements attesting to his dependability and his outstanding qualities in the ministry, good post-service conduct alone is not a basis for changing properly assigned entries and codes from a previous period of military service.

4.  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.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090005643



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ABCMR Record of Proceedings (cont)                                         AR20090005643



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