IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090010415 


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, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states, in effect, he enlisted in the Army when he was 17 years old.  He further states that after he completed basic combat training he was transferred to Fort Riley, KS where he was stationed for the rest of his military career, with the exception of a 60-day field training exercise in Germany.  He continues that after he returned from Germany he went on leave to visit his wife and family, only to find his wife "actively involved in session of physical intimacy" with his stepfather.  He states he was extremely distraught over this and in an effort to decrease his depression, he self-medicated with drugs and alcohol.  He concludes that he realizes now that he had other alternatives but states that due to the seriousness of the circumstances even the most mature individual would have had difficulty properly dealing with this situation.

3.  The applicant provides a self-authored letter 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's record shows that he enlisted in the Regular Army (RA) and he entered active duty on 3 June 1976.  He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he was advanced to private first class (PFC)/E3 on 1 November 1977 and that this was the highest rank/grade he attained while serving on active duty.  Item 9 (Awards, Decorations & Campaigns) shows that during his active duty tenure he earned the Expert Marksmanship Qualification Badge with Grenade Bar and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  The applicant's records do not show any acts of valor or significant achievement during his military service.

5.  The applicant's record shows that he accepted non-judicial punishment on four separate occasions:

	a.  on 21 June 1976, for being absent from his place of duty on 20 June 1976.

	b.  on 14 February 1978, for being absent without leave (AWOL) from his unit from 1 February 1978 to 10 February 1978.

	c.  on 28 July 1978, for failing to go at the time prescribed to his appointed place of duty on 26 July 1978.

	d.  on 3 August 1978, for wrongfully transferring marijuana on an installation under military control on 18 May 1978.

6.  The applicant's records contain a DD Form 458 (Charge Sheet), dated 3 May 1979, which indicates he was charged for being AWOL during the period 14 March 1979 to 30 April 1979.

7.  On 4 May 1979, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum 
permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an undesirable discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial.

8.  In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

9.  On 23 May 1979, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge.  On 30 May 1979, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time of his discharge confirms he completed a total of 2 years, 10 months, and 2 days of creditable active military service with 56 days of lost time due to AWOL.

10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

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.  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 applicant's contention that his under other than honorable conditions discharge should be upgraded to an honorable discharge was carefully considered.  While the circumstances provided by the applicant as the basis for his behavioral problems are unfortunate, they fail to provide a sufficient basis to warrant the upgrade of his discharge.

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 Army Regulation 635-200, chapter 10, are voluntary requests for discharge 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, given the applicant's record of indiscipline started 3 weeks after entering active duty, the applicant’s discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline which includes four instances of NJP and 56 days of being AWOL, 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 honorable or a general discharge.

4.  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)                                         AR20090010415



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1