IN THE CASE OF:	

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090014724 


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 the following:

   a.  Upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge,

   b.  Correction of his rank/grade to show staff sergeant (SSG)/E-6,

   c.	Adding him to a sergeant first class (SFC)/E-7 promotion list, 

   d.	Placing him on the retired list as an SFC/E-7, and

   e.	Restoring to him all military benefits.

2.  The applicant states the following:

   a.  He satisfactorily held the rank/grade of SSG/E-6 while on active duty,

   b.  He was wrongfully discharged as an "E-6,"

   c.  He was wrongfully and falsely accused of wrong doings against his daughter, and

   d.  His military records do not contain any misconduct or judicial proceedings.


3.  The applicant provides the following documents:

* Letter addressed to the Army Grade Determination Review Board and 
Army Discharge Review Board (ADRB)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Central Registry Release of Information Form
* Letter from the Commonwealth of Virginia, Newport News Juvenile and 
Domestic Relations District Court

CONSIDERATION OF EVIDENCE:

1.  The applicant enlisted in the Regular Army on 9 August 1978 and was discharged on 25 March 1981 for the purpose of reenlistment.  He reenlisted on 26 March 1981 and again on 17 May 1985.

2.  Orders published on 23 May 1985 show the applicant was promoted to specialist six (SP6)/E-6, effective 23 May 1985.

3.  On 8 November 1985, this Board corrected the applicant’s records to show he was promoted to E-6 effective 17 May 1985, the date on which he reenlisted or extended his term of service to meet the service remaining requirement for promotion.

4.  Orders published on 30 December 1986 show the applicant was reduced from SSG/E-6 to private (PV1)/E-1, effective 5 December 1986.

5.  The applicant’s discharge packet is not available for review.  However, his record contains a duly constituted DD Form 214 that shows he was discharged on 5 January 1987 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of court-martial with a UOTHC discharge.  He completed a total of 8 years,
4 months, and 27 days of active service.

6.  His DD Form 214 shows he was discharged as a PV1/E-1.

7.  On 23 January 1998, the ADRB denied the applicant’s request for an upgrade of his discharge.

8.  In a 14 January 2009 letter, the Newport News Juvenile and Domestic Relations District Court informed the applicant that they did not have record of any charges that may have come about prior to 1988, which is the time the court began use of the computer system.

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.  Paragraph 1-14 (Reduction in grade) of this regulation, in effect at the time, states that when a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade per Army Regulation 600-200 (Enlisted Personnel Management), chapter 6 (Reduction in Grade), section IV (Other Reasons for Reductions).

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, 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, a general discharge 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.

13.  Title 10, U.S. Code (USC), Section 3964 states that retired personnel may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  This service may consist of combined active service and service in the U.S. Army Reserve (USAR) Control Group (Retired), and the Army Grade Determination Board is the agency that reviews the records and/or applications for advancement on the Retired List in behalf of the Secretary for those who have attained 30 years of service.





DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was wrongfully discharged and wrongfully and falsely accused of wrong doings against his daughter.  However, the evidence of record does not contain sufficient evidence to support his claims.  The letter from the Newport News Juvenile and Domestic Relations District Court only confirms this court did not have record of any charges prior to 1988, which is when they starting using the computer system.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily and in writing, requested discharge from the Army in lieu of trial by court-martial.  By doing so, the applicant admitted to the guilt to the charged offense(s).

3.  In the absence of the applicant's chapter 10 discharge proceedings, the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial is presumed to have been administratively correct and in conformance with applicable regulations.

4.  Although the applicant's discharge packet is not available, it is presumed the separation authority appropriately directed the issuance of a UOTHC discharge based on his overall record of service.  Therefore, the evidence is not sufficient to support upgrading the applicant’s discharge to honorable or general, under honorable conditions.

5.  The evidence of record does not substantiate the applicant’s claim that he was wrongfully discharged as an E-6.  The applicant was promoted to E-6 on 17 May 1985 and was discharged with a UOTHC discharge in the rank/grade of PV1/E-1 on 5 January 1987.  By regulation, when a Soldier is to be discharged UOTHC, the separation authority will direct an immediate reduction to the lowest enlisted grade.  Therefore, he was properly reduced to PV1/E-1 as a result of his UOTHC discharge.

6.  The applicant’s request to be added to an SFC/E-7 promotion list is noted.  However, the evidence of record does not confirm the applicant was ever considered or selected for promotion to E-7.  Therefore, his service record lacks sufficient evidence to support this request.

7.  The applicant’s request to be added to the retired list as an SFC/E-7and to be restored all military benefits is also noted.  However, the evidence of record 

shows the applicant only had a total of 8 years, 4 months, and 27 days of active service at the time of his administrative discharge.  Title 10, U.S. Code, section 3964 pertains to retired personnel who may be advanced in grade to the highest grade satisfactorily held while on active duty, as determined by the Secretary of the Army, upon completion of 30 years of service.  Since he never held the grade of E-7 and did not have sufficient active service for retirement, there is no basis for granting his request to be placed on the retired list as E-7 or to be restored his military benefits. 

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)                                         AR20090014724



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ABCMR Record of Proceedings (cont)                                         AR20090014724



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