IN THE CASE OF:	

		BOARD DATE:	  7 January 2010

		DOCKET NUMBER:  AR20090008951 


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 discharge under other than honorable conditions be upgraded.

2.  The applicant states, in effect, that his DD Form 214 (Certificate of Release or Discharge from Active Duty) is in error because at the time of his discharge someone at the transfer point, Fort Lewis, Washington, handwrote the entry "Discharge Honorable" in item 35 (Record of Assignments) of his DA Form 2-1 (Personnel Qualification Record - Part II).  The applicant states he was already an alcoholic prior to entering the Army, but he is sober now.  He continues that his military career was very brief due to his weakness for alcohol and his continued slide downward.  He claims he was an excellent Soldier most of the time, but whenever he got paid he was always late returning to the base.

3.  The applicant states that the incident which ended his career occurred when he went off base while drunk, kicked in the door to another Soldier's apartment, drove him to a distant location, and forced him to walk back to base because he had stolen money from the applicant.  He continues that the civilian police apprehended them and returned them to military control at their base.  The applicant states that he had to choose between losing rank and forfeiting pay or requesting a discharge; he chose the latter.

4.  The applicant contends that an upgrade of his discharge would mean very much to him and his family.  He continues that during the past 5 years he has become a productive member of his community and he is a totally different man now and regrets the manner in which he left the military.  The applicant states that the biggest mistake he ever made was not having a career in the military.  He concludes that having his discharge upgraded to honorable would mean the world to him and make him feel like a true American.

5.  The applicant provides copies of his DD Form 214, an extract from his DA Form 2-1, two self-authored statements, and four character reference letters from his family and friends as 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 record shows he enlisted in the Regular Army on 30 April 1980.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade the applicant attained during his military service was private (PV2)/pay grade E-2.  However, his rank at the time of his separation was private (PV1)/pay grade E-1.

3.  A series of DA Forms 4187 (Personnel Action), dated 14 August-27 October 1980, show the applicant departed his unit in an absent without leave (AWOL) status on 14 August 1980; he was subsequently dropped from the unit rolls on 15 September 1980.  On 27 October 1980, the applicant surrendered to military authorities and returned to military control at Fort Lewis, Washington, the same date.

4.  A DA Form 2627 (Record of Proceedings under Article 15 of the Uniform Code of Military Justice (UCMJ)) shows the applicant accepted nonjudicial punishment under the provisions of Article 15 of the UCMJ for the aforementioned period of AWOL.  His punishment was forfeiture of $150.00 pay for 2 months.

5.  DA Forms 4187, dated 9 and 10 February 1981, show the applicant surrendered to Pierce County Police, Tacoma, Washington, on charges of unlawful detention and two counts of burglary.  These forms also show the applicant was incarcerated in Pierce County Jail pending trial and disposition of charges.  A DA Form 4187, dated 10 February 1981, shows the applicant was released on bail after a preliminary hearing pending a trial at a later date.

6.  DA Forms 4187, dated 24 and 27 April 1981, show the applicant departed his unit in an AWOL status on 24 April 1981 and remained absent until he surrendered to military authorities and returned to military control at Fort Lewis on 26 April 1981.

7.  DA Forms 4187, dated 5 May 1981 and 4 June 1981, show the applicant departed his unit in an AWOL status on 4 May 1981 and remained absent until he was dropped from the unit rolls on 3 June 1981.

8.  Headquarters, 9th Infantry Division and Fort Lewis, Orders 115-841, dated 15 June 1981, show the applicant returned to military control when he was apprehended by military authorities of the Fort Lewis Enforcement Command on 10 June 1981.

9.  A DD Form 458 (Charge Sheet), dated 17 June 1981, shows the applicant's chain of command recommended that a special court-martial with the authority to adjudge a bad conduct discharge be convened to review the court-martial charge that was preferred against the applicant for his most recent period of AWOL.

10.  On 23 June 1981, 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 or a dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, 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 for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

11.  In his request for discharge, the applicant acknowledged he understood that if the discharge request was approved, he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged that he understood that 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, that he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could expect to encounter substantial prejudice in civilian life.

12.  On 2 July 1981, the separation authority approved the applicant's request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200 and directed that he be reduced the lowest enlisted grade and issued an Under Other Than Honorable Conditions Discharge Certificate.

13.  On 10 July 1981, the applicant was discharged accordingly.  His DD Form 214 shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial with an under other than honorable conditions discharge.   This form further confirms the applicant had completed 10 months and 14 days of creditable active military service.

14.  Item 35 of the applicant's DA Form 2-1 contains a handwritten entry which reads "Discharge Honorable" and a stamped entry which reads "Ft. Lewis Transfer Point W12K1X."

15.  There is no evidence the applicant petitioned the Army Discharge Review Board seeking an upgrade of his discharge.

16.  The applicant provides copies of character reference letters from his wife, stepdaughter, and three friends in which they essentially attest that during the past 5 to 7 years, the applicant has been on an upward path toward recovery.  They all believe that he is a wonderful husband, stepfather, and friend, as well as being an active member of his church and community.

17.  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.

18.  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.

19.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge under other than honorable conditions should be upgraded was carefully considered.

2.  The applicant's record shows he had a pattern of frequent misconduct.

3.  The applicant's record also 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 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 rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service and by law and regulation the applicant was not entitled to a hearing.  The entry in item 35 of his DA Form 2-1 is clearly just an administrative error.

4.  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 has failed to submit evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service clearly did 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 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)                                         AR20090008951



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ABCMR Record of Proceedings (cont)                                         AR20090008951



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