IN THE CASE OF:	  

		BOARD DATE:	         3 September 2009

		DOCKET NUMBER:  AR20090005932 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states that he does not believe that his character of service was justified.  He was court-martialed due to a fight between himself and another Soldier.  He was protecting himself and no action was taken against the other Soldier.   

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 records show he enlisted in the Regular Army, in pay grade E-1, on 13 June 1979, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was advanced to pay grade E-2 on 15 January 1980, the highest grade he held. 

3.  On 26 March 1980, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go to his appointed place of duty on 20 March 1980.  The punishment imposed was a reduction to pay grade E-1 (suspended for 60 days), a forfeiture of $100.00 pay (suspended for 60 days), and 7 days confinement.  He elected to appeal the punishment and his appeal was denied on 8 April 1980.

4.  On 20 May 1980, the suspension of the punishment of reduction to pay grade E-1 was vacated.

5.  On 29 May 1980, the applicant accepted punishment under Article 15, UCMJ, for wrongful possession of some amount of marijuana on 21 May 1980.  The punishment imposed was a reduction to pay grade E-1, a forfeiture of $250.00 pay, and 30 days restriction and extra duty.  After consulting with counsel, he elected not to demand a trial by court-martial.  

6.  On 4 June 1980, the applicant's company commander initiated a bar to reenlistment against the applicant.  The company commander stated that the applicant was totally unable to grasp the importance of military discipline and responsibility.  He missed formations and in each instance received counseling from his squad leader and platoon sergeant, without improvement.  The applicant elected not to submit a statement in his own behalf.  The bar to reenlistment was approved on 6 June 1980.

7.  On 9 June 1980, the applicant accepted punishment under Article 15, UCMJ, for failing to obey a lawful order on 2 June 1980.  The punishment imposed was 7 days confinement.  He elected to appeal the punishment and his appeal was denied on 10 June 1980.

8.  On 3 October 1980, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company C, 2nd Battalion, 21st Infantry, Fort Stewart, Georgia.  The applicant was charged with one specification of being disrespectful in language toward his superior non-commissioned officer (NCO) on 8 August 1980 and one specification of communicating a threat to his superior NCO on 8 August 1980.  

9.  On 21 October 1980, after consulting with counsel, the applicant voluntarily requested discharge for the good of the service, under the provisions of Army Regulation 635-200, Chapter 10.  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.   He also stated that under no circumstances did he desire further rehabilitation, for he had no desire to perform further military service.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate, and as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits, and that he may be ineligible for many or all benefits administered by the Veteran's Administration.  He waived his rights and elected not to submit a statement in his own behalf.

10.  On 21 October 1980, the applicant's company commander recommended approval of the applicant's request.  The unit commander stated that the applicant was an incorrigible disciplinary problem and all means of corrective action had been exhausted.

11.  On 22 and 23 October 1980, the applicant's battalion-level and brigade-level commanders recommended approval of the applicant's request and recommended he be discharged under other than honorable conditions.

12.  On 28 October 1980, the appropriate authority approved the applicant's request for discharge for the good of the service and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.

13.  The applicant was discharged on 7 November 1980, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial.  He was credited with 1 year, 4 months, and 25 days total active service.

14.  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.

15.  Army Regulation 635-200 (Personnel Separations – Enlisted Separations), in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided 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.  An under other than honorable conditions discharge was normally considered appropriate.  
16.  Army Regulation 635-200, paragraph 3-7a, of that regulation provided that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

17.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  

2.  The applicant's contention that the character of his discharge was unjustified has been noted.  However, he was punished under Article 15 due to misconduct on three occasions, barred from reenlistment, and charged with being disrespectful in language and communicating a threat to his superior NCO.  The unit commander stated that the applicant was an incorrigible disciplinary problem and all means of corrective action had been exhausted.  The applicant requested discharge in lieu of facing a court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.

3.  The applicant has provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.  

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20090005932





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ABCMR Record of Proceedings (cont)                                         AR20090005932



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