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ARMY | BCMR | CY2009 | 20090010867
Original file (20090010867.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090010867 


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 upgrade of his under other than honorable conditions discharge to a general under honorable conditions or a higher discharge as deemed appropriate.

2.  The applicant states, in effect, that he was discharged 39 days before the end of his 3-year active duty enlistment assignment.

3.  The applicant provides no additional documents 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 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 (RA) on 1 August 1978.

3.  On 18 December 1978, the applicant accepted nonjudicial punishment (NJP) for wrongfully having in his possession 0.2 grams, more or less of marijuana on
7 December 1978.  His imposed punishment was a forfeiture of $100.00 pay per month for 2 months.

4.  On 20 August 1980, the applicant accepted NJP for on or about 26 July 1980, without authority, failing to go to at the prescribed time to his appointed place of duty.  His punishment was a reduction to private first class (PFC)/E-3 and 7 days of extra duty.

5.  The applicant's record also contains three Fort Ord (FO) Forms 1-54 (Record of Informal Counseling Session) and witness statements, dated between           12 August 1980 and 30 October 1980, for various offenses, to include failing to report to his appointed place of duty, disobeying a lawful order from a noncommissioned officer, missing movement, and disobeying a direct order from a commissioned officer.

6.  On 4 March 1981, the applicant’s unit commander prepared a DA Form 
4126-R (Bar to Reenlistment Certificate).  The reasons cited for the bar was that the applicant had received NJP and he was counseled repeatedly but had shown no improvement despite correctional or disciplinary action.  This Bar to Reenlistment Certificate was approved by the proper authority on 6 April 1981.

7.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the evidence of record does include a properly-constituted DD Form 214 authenticated by the applicant that contains the authority and reason for the applicant’s active duty discharge on
23 June 1981, in pay grade E-1.  The DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, by reason of the good of the service in lieu of court-martial with an under other than honorable conditions discharge.  The DD Form 214 he was issued confirms he completed a total of 2 years, 10 months, and 18 days of creditable active military service and had 5 days of time lost.

8.  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.

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, 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.

10.  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.

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 shows that the applicant voluntarily requested discharge in lieu of trial by court-martial.

2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge.

3.  Based on his disciplinary record and Bar to Reenlistment Certificate, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no basis to grant either a general, under honorable conditions or an honorable discharge.

4.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

5.  In view of the above, there is no basis for 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)                                         AR20090010867



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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