IN THE CASE OF:	  

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090015243 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he made some poor decisions due to his drinking. However, prior to that, he was a squared away Soldier and loved his job and defending his country.  His drinking was the only thing that hindered his military service.  He has been sober for many years and has learned that the Army has recently changed the enlistment age limit to 43.  He is within that age limit and wishes to reenter military service.  

3.  The applicant did not provide any additional documentary evidence in support of his request.

CONSIDERATION OF EVIDENCE:

1.  The applicant's records show he enlisted in the Regular Army for a period of 4 years and 17 weeks on 1 May 1992.  He completed basic combat and advanced individual training, and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was private/E-2. 

2.  The applicant’s records also show he served in Italy from 22 November 1992 to 23 March 1993.  He was awarded the National Defense Service Medal, the Army Service Ribbon, the Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

3.  On an unknown date in March 1993, court-martial charges were preferred against the applicant for unknown specifications of violating the Uniform Code of Military Justice (UCMJ).  A copy of the charge sheet is not available for review with this case.

4.  On 4 March 1993, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel and of his own free will without being subjected to any coercion whatsoever by any person, he requested discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of trial by court-martial.

5.  In his request for discharge, the applicant indicated he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  Additionally, he also stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service." 

6.  On 5 March 1993, the applicant's immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions character of service. 

7.  On 9 March 1993, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed that he be reduced to the lowest enlisted grade issued an under other than honorable conditions discharge.  The applicant was accordingly discharged on 24 March 1993.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms the applicant had completed a total of 10 months and 24 days of creditable active military service.

8.  On 19 March 2008, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge. 

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 (emphasis added), 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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 contains guidance on the burden of proof.  It states, in pertinent part, that the ABCMR begins its consideration of each case with the presumption of administrative regularity, that is what the Army did was correct.  The ABCMR is not an investigative body and decides cases based on the evidence that is presented in the military records provided and the independent evidence submitted with the application.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the charge sheet that describes the offenses he violated.  However, it appears that he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during this period of service.

3.  The applicant's contentions that his discharge should be upgraded because he was a squared away Soldier, except for his drinking problem, his noble desire to reenter military service, and his overall service record was carefully considered; however, it was found not sufficiently mitigating for upgrading his discharge.  The applicant had many legitimate avenues through which he could have received assistance or relief for his alleged drinking problem had he chosen to use them.

4.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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)                                         AR20090015243



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ABCMR Record of Proceedings (cont)                                         AR20090015243



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