IN THE CASE OF:	  

		BOARD DATE: 	       10 November 2009

		DOCKET NUMBER:  AR20090009863 


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 to a general discharge.

2.  The applicant states, in effect, that his discharge should be upgraded to a general discharge because he served more than 3 years without a problem, that he requested to be discharged, and he was never convicted or charged with a crime.  He contends that enough time has elapsed and that there would be different results if the event happened today.  He indicates that he was only doing what he was trained to do and just because an officer left his weapon unsecured is no reason to punish him for securing the weapon.  He also states that he was not informed of his legal rights at the time.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) 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 enlisted in the Regular Army on 16 February 1979 for a period of 4 years.  He successfully completed one-station unit training and advanced individual training and was awarded military occupational specialty 12B (combat engineer).

3.  On 6 May 1980, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of correctional custody (suspended), a reduction to pay grade E-2 (suspended), and a forfeiture of pay.

4.  On 15 June 1981, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of a reduction to pay grade E-3 (suspended), a forfeiture of pay, extra duty, and restriction.  On 24 June 1981, the suspended portion of the applicant's punishment was vacated.

5.  On 6 January 1982, charges were preferred against the applicant for stealing a .38 caliber Smith and Wesson revolver, the property of the government.  Trial by special court-martial was recommended.

6.  The applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State law.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

7.  On 12 February 1982, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

8.  Accordingly, the applicant was discharged under other than honorable conditions on 18 February 1982 under the provisions of Army Regulation 
635-200, chapter 10, in lieu of trial by court-martial.  He had served a total of 3 years and 3 days of creditable active service.
9.  On 17 January 1997, the Army Discharge Review Board (ADRB) denied the applicant's request for a discharge upgrade.

10.  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.

11.  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 evidence of record does not support the applicant's contentions that he served more than 3 years without a problem and that he was never convicted or charged with a crime.  He received two nonjudicial punishments for drug offenses and charges were preferred against him for larceny on 6 January 1992.

2.  Although the applicant contends that he was not informed of his legal rights at the time, the evidence of record shows he consulted with counsel prior to voluntarily requesting discharge in lieu of trial by court-martial.

3.  The applicant’s voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns but he elected not to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  Since the applicant’s record of service included two nonjudicial punishments and a serious offense for which a special court-martial charge was preferred, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge.

6.  The Army does not have nor has it ever had a policy that provides for the upgrade of a discharge based on the passage of time.  A discharge may be upgraded by the ADRB or this Board if either determines the discharge was improper or inequitable.  A review of this case reveals no evidence that suggests there was any error or injustice related to the applicant's separation processing.  Therefore, his discharge was proper and equitable and it accurately reflects the applicant's overall record of service.  As a result, there is an insufficient evidentiary basis to support 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.



      ____________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)                                         AR20090009863



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ABCMR Record of Proceedings (cont)                                         AR20090009863



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