IN THE CASE OF:	  

		BOARD DATE:	  17 November 2009

		DOCKET NUMBER:  AR20090011247 


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 an honorable discharge.

2.  The applicant states, in effect, that he was young and immature and now regrets his misbehavior.  He states that while on active duty he earned his General Equivalency Diploma (GED) and he learned the value of education.  He states he is now a mature adult and he is pursuing a master's degree in higher education with the objective to teach.  In looking back, he states the military was good for him in many ways.  He would like to regain his self-respect by having his discharge upgraded to honorable.

3.  The applicant provides a self-authored statement 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 (RA) on 8 January 1980 for 3 years.  His was born on 10 July 1962 and he was 18 years old when he enlisted as a non-high school graduate.  He successfully completed basic and advanced individual training and he was awarded military occupational specialty (MOS) 13E (Cannon Fire Direction Specialist).  The highest rank/grade he attained during his tenure of service was private first class (PFC)/E-3.

3.  On 5 May 1980, the applicant was assigned to Company A, 1st Battalion, 37th Field Artillery at Fort Richardson, AK.

4.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 9 February 1981 for wrongful possession of a controlled substance (marijuana) and possession of a 20-gauge shotgun (Harrington & Richardson) with ammunition on a Federal installation in violation of known Army regulations.  His punishment consisted of reduction to the rank/grade of private (PV1)/E-1, forfeiture of $250.00 pay per month for two months, and extra duty and restriction for 45 days.

5.  On 17 March 1981, court-martial charges were preferred against the applicant for the following violations of the UCMJ:

	a.  Article 86, UCMJ, for failing to go at the time prescribed to his extra duty appointed place of duty on three separate occasions;

	b.  Article 91, UCMJ, for willfully disobeying a lawful order from his superior noncommissioned officer; and

	c.  Article 108, UCMJ, for unlawfully damaging some doors and desks with paint, of a value in excess of $100.00, military property of the United States.

6.  On 19 March 1981, 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 UCMJ, the possible effects of an under other than honorable conditions 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 under the provisions of chapter 10, Army Regulation
635-200 (Personnel Separations - Enlisted Personnel).


7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he understood that if his discharge request was approved 
he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  The applicant's immediate and intermediate commanders recommended approval of the applicant's request for discharge and recommended issuance of an under other than honorable conditions discharge.

9.  On 24 March 1981, the separation authority approved the applicant's request for discharge for the good of the service and directed that he be discharged with an under other than honorable conditions discharge.

10.  On 7 April 1981, the applicant was discharged accordingly.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) confirms he was discharged with an under other than honorable conditions discharge.  This form further confirms that he completed 1 year and 3 months of creditable active service.

11.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 19 May 1982, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

12.  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.

13.  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.
14.  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 contends that he was young and immature at the time of his offense and he now realizes the personal benefits that his military service afforded him.  He contends that his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant was 19 years old at the time he accepted NJP for wrongful possession of a controlled substance (marijuana) and possession of a civilian firearm with ammunition on a Federal installation.  Later in his 19th year, he was charged with three different offenses punishable under the UCMJ.

3.  The applicant voluntarily requested discharge under the provisions of Army Regulation 632-200, chapter 10, in lieu of trial by court-martial.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would tend to jeopardize his rights.  Furthermore, the quality of the applicant’s service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  While it is commendable that the applicant is pursuing postgraduate studies, this fact alone is insufficient to warrant upgrading a properly issued discharge.

5.  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 that requirement.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to either an honorable or a general, under honorable conditions 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)                                         AR20090011247



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ABCMR Record of Proceedings (cont)                                         AR20090011247



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