IN THE CASE OF:	  

		BOARD DATE:	    23 March 2010

		DOCKET NUMBER:  AR20090015097 


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 that he served his country honorably for 7 1/2 years and was a loyal countryman.  He is hoping that his one error in judgment, due to family problems, should not determine the man he is and his love of his country.  He believes he has paid his debt to society and has learned a grave lesson from his actions and he is sorry.

3.  In support of his application, the applicant provides copies of a 1980 National Safety Council Defensive Driving Campaign Certificate of Appreciation; his 1982 Honorable Discharge Certificate; his 1983 Primary Noncommissioned Officers Course for Combat Arms diploma; his 1983 Certificate of Promotion to pay grade E-5; his 1984 Army Good Conduct Medal orders; his 1983, 1984, and 1985 Enlisted Evaluation Reports; three Letters of Appreciation, his 1985 DD Form 214 (Certificate of Release or Discharge from Active Duty), and his Under Other Than Honorable Conditions Discharge Certificate.  

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’s military records show he enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program (DEP) on 25 February 1978.  He was discharged from the USAR DEP on 6 June 1968 and he enlisted in the Regular Army (RA) in pay grade E-1 on 7 June 1978 for 4 years.  He completed training and was awarded military occupational specialty (MOS) 19E (M48 – M60 Armor Crewman).  He was promoted to pay grade E-4 on 17 December 1980.

3.  The applicant was honorably discharged for the purpose of immediate reenlistment on 26 February 1982.  He reenlisted on 27 February 1982 for 6 years.  He was promoted to pay grade E-5 on 1 May 1983.

4.  The applicant submitted documentation that shows he was awarded the Army Good Conduct Medal (2nd Award) in 1984 and received three Letters of Appreciation in recognition of his significant contribution during three major events involving his battalion.

5.  The applicant also submitted a copy of his 1983 evaluation report wherein the rater stated the applicant should be promoted with his peers.  The 1984 report shows the rater stated the applicant should be promoted ahead of his peers.  In his 1985 report the rater stated the applicant had a bad temper and sometimes lost control of himself and should not be promoted until he showed significant self-improvement.

6.  A DD Form 458 (Charge Sheet), dated 28 October 1985, was prepared by the Commander, H Company, 2nd Squadron, 2nd Armored Cavalry Regiment.  The applicant was charged with one specification of disobeying a lawful order not to fire his weapon outside the territorial limits of the United States on 13 August 1985, one specification of wrongfully possessing military ammunition without proper authorization on 13 August 1985, and one specification of wrongfully and willfully discharging a firearm under circumstances such as to endanger human life on 13 August 1985.

7.  On 8 November 1985, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 
(Personnel Separations - Enlisted Separations), chapter 10, for the good of the service in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged that he could be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 8 November 1985, the applicant’s unit commander recommended approval of the applicant’s request and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The unit commander stated that the nature of the applicant’s offenses had a detrimental effect on that unit.  The applicant’s potential to be a productive Soldier was very unlikely and it would be in the best interest of the Army to separate him immediately.

9.  On 8 November 1985, the applicant’s battalion commander recommended approval of the applicant’s request and regarded its approval to be in the best interest of the Army.  He also recommended the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 18 November 1985, the applicant’s commander recommended approval of the applicant’s request.  The brigade commander stated that the applicant was pending trial by a special court-martial empowered to impose a bad conduct discharge for disobeying a lawful order, violating a general regulation, and discharging a firearm.

11.  On 19 November 1985, the appropriate separation authority approved the applicant’s request and directed the issuance of an under other than honorable conditions discharge and reduction to pay grade E-1.

12.  The applicant was accordingly discharged from active duty in pay grade E-1 on 18 December 1985, for the good of the service in lieu of court-martial.  His character of service was under other than honorable conditions.  He was credited with completing 7 years, 6 months, and 12 days of total active service.

13.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.


14.  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.

15.  Army Regulation 635-200, paragraph 3-7a, specified that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be inappropriate.

16.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to an honorable or a general, under honorable conditions discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention that his one error in judgment should not determine the man he is or his love for his country has been noted.  However, the applicant was charged with disobeying a lawful order not to fire his weapon outside the territorial limits of the United States, wrongfully possessing military ammunition without proper authorization, and wrongfully and willfully discharging a firearm under circumstances such as to endanger human life.  He voluntarily requested to be discharged and in doing so he admitted guilt to the stipulated offenses.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  The applicant also acknowledged that he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.
3.  Contrary to the applicant's contentions, he has provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s commission of three serious offenses diminished the quality of his service below that meriting a fully honorable discharge.

4.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, 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)                                         AR20090015097



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090015097



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1