BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090015529 


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 to an honorable discharge.

2.  The applicant states his discharge should have been changed to an honorable discharge 6 months after he was out of the military.

3.  The applicant provides no additional evidence 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's military personnel records show he enlisted in the Regular Army on 28 December 1982 for a period of 3 years.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 11B (Infantryman).

3.  On 22 May 1984, the applicant was assigned to the 1st Battalion, 
16th Infantry in Germany.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on two occasions:

	a.  2 April 1985 for failure to go to his appointed place of duty and for being disrespectful in language towards a noncommissioned officer.

	b.  11 June 1985 for the wrongful use of marijuana.

5.  On 22 July 1985, court-martial charges were preferred against the applicant for wrongful distribution of 2.5 grams, more or less, of marijuana.

6.  On 25 July 1985, the applicant voluntarily requested discharge for the good of the service.  He acknowledged he understood the offense he was charged with and he was:

	a.  making the request of his own free will.

	b.  guilty of the offense with which he was charged.

	c.  afforded the opportunity to speak with counsel prior to making this request.

	d.  advised he may be furnished an Under Other Than Honorable Conditions Discharge Certificate.

7.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge and he:

a. would be deprived of many or all Army benefits.  

b. may be ineligible for many or all Veterans Administration (VA) benefits.


8.  A captain of the Judge Advocate General's Corps countersigned this statement and attested that he had counseled the applicant concerning the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice; of the possible effects of an under other than honorable conditions discharge, if his request was approved; and of the procedures and rights available to him.

9.  On 28 August 1985, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the applicant be reduced to private/pay grade E-1 and be furnished an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 20 September 1985, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 for the good of the service.  He had completed 2 years, 8 months, and 23 days of active service that was characterized as under other than honorable conditions.  

11.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation states a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request must include the Soldier's acknowledgement that the Soldier understands the elements of the offense(s) charged and that the Soldier is guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  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 his discharge under other than honorable conditions should have been upgraded to an honorable discharge 6 months after he left the military.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting a change in the discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the narrative reason for separation or both were improper or inequitable.  Defense Discharge Review Standards specifically state that no factors should be established that require automatic change or denial of a change in discharge.

3.  The applicant voluntarily requested discharge and admitted guilt to the offense for which he was charged.  He also acknowledged that he could receive an under other than honorable conditions discharge and that he may be ineligible for many or all Army benefits to include benefits administered by the VA.

4.  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 was administratively correct and in conformance with applicable regulations.  

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The records contain no evidence of procedural or other errors that would have jeopardized his rights.

6.  The ABCMR does not upgrade discharges based solely on the passage of time.




7.  In view of the foregoing, the evidence is insufficient for upgrading the applicant's discharge to a general discharge under honorable conditions or an honorable discharge.

8.  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.

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)                                         AR20090015529



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ABCMR Record of Proceedings (cont)                                         AR20090015529



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