IN THE CASE OF:	

		BOARD DATE:	 1 September 2009   

		DOCKET NUMBER:  AR20090005703 


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 discharge under other than honorable conditions.

2.  The applicant states, in effect, that he served his country to the best of his ability and he needs his Veterans Affairs benefits reestablished in order to care for his health.  The applicant continues that he gave his all and a military lawyer recommended that he accept an other than honorable discharge in lieu of confinement for an incident (in which he states he did not participate) that occurred with a group of Soldiers in Germany.

3.  The applicant provides no documentary evidence 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 sub-stantive 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 that he enlisted in Regular Army and entered active duty on 24 April 1979.  He completed basic combat and advanced individual training.  Upon completion of advanced individual training, he was awarded the military occupational specialty 13B (Cannon Crewman).  The highest rank he attained while serving on active duty was the rank of private (PV2)/pay grade E-2; however, at the time of separation he held the rank of private (PVT)/pay grade E-1.

3.  The applicant's record reveals a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for being disrespectful to two superior noncommissioned officers on 5 November 1979.

4.  DA Form 458 (Charge Sheet), dated 13 November 1979, shows the applicant was charged with violating Article 81 of the UCMJ by conspiring with three other Soldiers to commit a robbery and in the commission of the robbery, assaulting another Soldier on or about 9 November 1979.  The applicant was also charged with violating Article 122 of the UCMJ by means of force and violence stealing a wallet from another Soldier.  The applicant's battalion and brigade level comman-ders recommended that he be tried by special court-martial empowered to adjudge a bad conduct discharge.

5.  On 14 November 1979, 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.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  In his request for dis-charge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, that also authorized the imposition of a bad conduct or dishonorable discharge and acknowledged that 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.

6.  On 26 November 1979, the separation authority approved the applicant's request and directed that he be reduced to the lowest enlisted grade and discharged under other than honorable conditions.

7.  United States Army Regional Personnel Center, Nurnberg, Orders 340-64, dated 6 December 1979, assigned the applicant to United States Army Transfer Point, Fort Dix, New Jersey, effective 11 December 1979, and discharged the applicant under the provisions of Army Regulation 635-200 effective 12 December 1979.  Headquarters, United States Army Training Center and Fort Dix, Fort Dix, New Jersey, Orders 345-391, dated 11 December 1979, amended Orders 340-64 by changing the effective date of the applicant's discharge to 11 December 1979.

8.  The DD Form 214 (Certificate of Release or Discharge From Active Duty) issued to the applicant at the time confirms the applicant completed a total of 7 months and 18 days of creditable active military service and received an under other than honorable conditions characterization of service.  The DD Form 214 also shows the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for conduct triable by court-martial.

9.  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 trial by court-martial.  

10.  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.

11.  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.  

12.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded was carefully considered and determined to be without merit.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 require an admission of guilt to the offenses charged and are voluntary requests for discharge in lieu of trial by court-martial.  Evidence shows that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  Evidence shows that the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no indication of procedural errors which would tend to jeopardize his rights.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

4.  Based on his 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 also renders his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge to either an honorable or general characterization of service.

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 this requirement.

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)                                         AR20090005703





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ABCMR Record of Proceedings (cont)                                         AR20090005703



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