IN THE CASE OF:	  

		BOARD DATE:	  22 October 2009

		DOCKET NUMBER:  AR20090008801 


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, in effect, that his discharge under other than honorable conditions be upgraded to an honorable or general discharge.

2.  The applicant essentially states that his discharge under other than honorable conditions continues to cause financial, employment, and personal hardships for him.  He also claims that other than two relatively minor infractions since his discharge, he has attained a far greater level of maturity and responsibility than he exhibited as a 20-year old.  He further contends, in effect, that he has not been able to obtain benefits from the Department of Veterans Affairs (DVA) and has been denied employment with the U.S. Postal Service and law enforcement agencies because of his discharge and does not believe that he deserves to continue to endure all of the financial and employment hardships that resulted from his discharge.  Further, he believes that after a review of his entire record and current situation, the Army Board for Correction of Military Records (ABCMR) will see that his discharge should be upgraded to an honorable or general discharge in the interest of justice.

3.  The applicant provides a self-authored statement, dated 30 April 2009; 12 third-party letters of support; and a letter, dated 5 May 2009, from an attorney in support of this 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 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 that he enlisted in the Regular Army on 23 August 1989.  He completed initial entry training and was awarded military occupational specialty 11B (Infantryman).  After completing airborne training and the Ranger Indoctrination Program, he was assigned to Fort Lewis, Washington, for what would be his first and only permanent duty station.  He was promoted to private/E-2 on 23 February 1990, to private first class/E-3 on 23 August 1990, and to specialist/E-4 on 1 November 1991.

3.  Although the complete facts and circumstances (i.e., his DD Form 458 (Charge Sheet)) are not in his military records, on 2 July 1992 the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Enlisted Personnel - Personnel Separations), chapter 10 (Discharge in Lieu of Trial by Court-Martial).  In his request, he acknowledged that he understood that he may request discharge for the good of the service because charges were preferred against him under the Uniform Code of Military Justice (UCMJ) which authorized the imposition of a bad conduct or dishonorable discharge.  His request for discharge shows that he was charged with two specifications of the violation of a lawful general regulation and the violation of U.S. Code by wrongfully possessing and failing to register a modified shotgun.  He also acknowledged that he made his request for discharge of his own free will and was not subjected to any coercion whatsoever by any person.  He also understood the elements of the offenses charged and was guilty of the charges against him or of lesser included offenses therein contained which also authorized the imposition of 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.

4.  In his request for discharge, the applicant acknowledged that he consulted with counsel who fully advised him of the nature of his rights under the UCMJ, the elements of the offenses with which he was charged, any relevant lesser included offenses thereto, and the facts which must be established by competent evidence beyond a reasonable doubt to sustain a finding of guilty.  He also had been advised of the possible defenses which appeared to be available at the time and the maximum permissible punishment if found guilty.  He further understood that although his legal counsel furnished him legal advice, the decision was his own.

5.  Additionally, the applicant further understood that if his request for discharge was accepted, he may be discharged under other than honorable conditions.  He also acknowledged that he had been advised and understood the possible effects of an under other than honorable conditions discharge and that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits and that he may be ineligible for many or all benefits as a veteran under both Federal and State law.  Further, he acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  Also, he understood that there was no automatic upgrading or review by any government agency of a less than honorable discharge and that he must apply to the Army Discharge Review Board (ADRB) or the ABCMR if he wished for a review of his discharge.  He also realized that the act of consideration by either board did not imply that his discharge would be upgraded.  The applicant elected not to submit any statements in his own behalf.

6.  On 16 July 1992, the proper authority approved the applicant’s discharge under other than honorable conditions under Army Regulation 635-200, chapter 10.  He also directed that the applicant be reduced to the lowest enlisted grade.  On 31 July 1992, the applicant was discharged accordingly.

7.  In a letter, dated 29 September 1995, the ADRB informed the applicant that his petition to upgrade his discharge had been denied.

8.  The applicant provided 12 third-party letters of support, several from veterans and law enforcement officials, which essentially portray him as an outstanding citizen with a good work ethic and attitude and state that he is a hard worker who is a role model to his children and an upstanding member of his community.

9.  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, 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.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Army Regulation 635-200 also provides, in pertinent part, 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.

11.  This same regulation further provides, in pertinent part, 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 discharge under other than honorable conditions should be upgraded to an honorable or general discharge.

2.  The evidence provided by the applicant regarding his post-service conduct was carefully considered; however, good post-service conduct alone is not a basis for upgrading a discharge.

3.  The fact that the applicant is requesting that his discharge be upgraded for employment reasons was noted; however, there are no provisions for upgrading a discharge simply for the purpose of improving a person's employment prospects.

4.  The fact that the applicant is attempting to obtain benefits from the DVA was also noted.  However, the DVA administers its benefit programs under its own regulations and policies and granting DVA benefits is not within the purview of the ABCMR.  The fact that the applicant is seeking DVA benefits does not constitute that an error or injustice occurred in his discharge.

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.

6.  It is clear that the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

7.  The applicant's entire record of service was taken into consideration.  However, his misconduct so far outweighed his record of military service that relief cannot be justified in this case.

8.  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, he is not entitled to either an honorable or general 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)                                         AR20090008801



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ABCMR Record of Proceedings (cont)                                         AR20090008801



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