IN THE CASE OF:	  

		BOARD DATE: 	  24  November 2009

		DOCKET NUMBER:  AR20090011132 


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 honorable.

2.  The applicant states, in effect, that for 29 years he has lived with the feeling he was taken advantage of because his captain did not like him.  He contends that after his special court-martial the members of the court-martial decided he would go to Fort Leavenworth for 6 months and then finish his time in the military; however, his captain told him that he did not want him in his unit and "pushed" a chapter 10 in his face.  He indicates that the captain told him that if he did not sign the chapter 10, the captain would make his life hell.  After he signed the chapter 10 he found out from the Headquarters Company First Sergeant that he could have been transferred to another unit.  He believes the captain robbed him of the chance to finish his enlistment.

3.  The applicant provides no documentary evidence 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.  Having prior service in the U.S. Army Reserve, the applicant enlisted in the Regular Army on 8 May 1979 for a period of 4 years.  He served as a heavy equipment mechanic.

3.  On 18 December 1979, nonjudicial punishment was imposed against the applicant for failing to go at the prescribed time to his appointed place of duty.  His punishment consisted of a forfeiture of pay, a reduction to pay grade E-1 (suspended), and 7 days of correctional custody (suspended).

4.  On 16 May 1980, charges were preferred against the applicant for being absent without leave (AWOL) from 1 February 1980 to 23 April 1980 and for two specifications of larceny.  Trial by special court-martial was recommended.

5.  On 2 June 1980, the applicant consulted with counsel and requested discharge for the good of the service 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 laws.  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.

6.  On 29 July 1980, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

7.  Accordingly, the applicant was discharged under other than honorable conditions on 1 August 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served a total of 1 year, 4 months, and 9 days of creditable active service with 81 days of lost time due to AWOL.

8.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board 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 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 applicant's contentions were carefully considered.  However, there is no evidence of record which shows he was convicted by a special court-martial.  The evidence of record shows he consulted with counsel and voluntarily requested discharge in lieu of trial by special court-martial.

2.  Since the applicant’s record of service included one nonjudicial punishment, 81 days of lost time, and serious offenses for which special court-martial charges were preferred, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general discharge or an honorable discharge.

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.

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)                                         AR20090011132



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ABCMR Record of Proceedings (cont)                                         AR20090011132



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