IN THE CASE OF:	

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090013420 


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. 

2.  The applicant states, in effect, that he served 16 years in the military, that he was a highly devoted career Soldier, and that during a time of extreme circumstances he made some poor decisions resulting in his discharge from the military.  He contends that his legal counsel was ineffective and did not appear to be concerned with the best interest of his military career.  He indicates that in 1991 he applied for a discharge upgrade and his request was denied.  He feels the board did not consider all of his military service and only focused on his last term of service.  He states that the punishment did not fit the crime he was accused of and that prior to the incident he was a stellar Soldier.  He points out that since his discharge he has been a devoted husband and father, a hard worker, and he lives his life in an honorable way.  He also states that since his discharge he has applied for several State and Federal jobs and has been turned down.   

3.  The applicant provides letters, dated 24 July 2009 and 6 July 2009, from a Member of Congress; a character reference letter; a letter, dated 24 June 2009, from the Congressional Inquiry Division, Office of the Chief of Legislative Liaison, Pentagon; and a letter, dated 9 February 1991, with 12 enclosures which he provided to the Army Discharge Review Board (ADRB) in support of his request for a discharge upgrade 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 23 August 1973, served as a cannon crewman, and was honorably discharged on 23 May 1977 for immediate reenlistment.  He reenlisted on 24 May 1977, served as a field artillery radar crewman, and was honorably discharged on 2 October 1978 for immediate reenlistment.  He reenlisted on 3 October 1978, served as a cannon crewman and a field artillery radar crewman, and was honorably discharged on 
28 September 1982 for immediate reenlistment.  He reenlisted on 29 September 1982, served as a field artillery radar crewman and firefinder radar operator, and was honorably discharged on 18 October 1987 for immediate reenlistment.  He reenlisted on 19 October 1987.   

3.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 10 August 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 15 years, 11 months, and 18 days of creditable active service.

4.  Records show that on 5 February 1993 the ADRB denied the applicant's request for an honorable discharge. 

5.  In support of his claim, the applicant provided a character reference letter from his brother-in-law.  He attests that he has known the applicant since 1964 and that the applicant is honest, trustworthy, loyal, and devoted to doing the right thing.  He believes the applicant was treated unfairly when he was discharged from the service with a less than honorable discharge and he does not think the applicant's prior honorable service was considered.  He believes that if the applicant had better representation he may have been allowed to remain in the military until he was eligible for retirement. 

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

7.  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.

8.  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 he had ineffective counsel relates to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, it appears the applicant voluntarily requested discharge in lieu of trial by court-martial.  

2.  A discharge is not upgraded for the purpose of obtaining employment opportunities.  

3.   The character reference letter submitted in behalf of the applicant fails to show that his discharge was unjust and should be upgraded.

4.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

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)                                         AR20090013420





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ABCMR Record of Proceedings (cont)                                         AR20090013420



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