IN THE CASE OF:	  

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090016450 


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 under other than honorable conditions discharge under Army Regulation 635-200 (Personnel Separations), chapter 10, be upgraded to general under honorable conditions.  He also requests the narrative reason be changed to the convenience of the government, his rank and pay grade be changed to private first class (E-3), and the first entry in item 18 (Remarks) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) be corrected to read "Continuous Honorable Active Service from 841113-911114."

2.  The applicant states he accepts full responsibility for his actions that led to the discharge.  However, he believes several errors on the DD Form 214 need to be corrected.  These include the following:

	a.  He should have been reduced only one pay grade.  Army Regulation 
27-10 (Military Justice) permits individuals in pay grade E-5 and above to be reduced only one pay grade.

	b.  The service should be characterized as general under honorable conditions because he had served continuously with honor from his original enlistment on 13 November 1984 until he went absent without leave (AWOL) on 14 November 1991.

	c.  Considering the "memoranda of input" that explained what a good Soldier and trainer he was and his overall record of service, characterizing his service as under other than honorable conditions was unjustified and inequitable.  It was based on one isolated incident in 7 years of service.

3.  The applicant provides, in support of his request, copies of his DD Form 214, a 15 July 1990 "memorandum of input," and a 30 July 1990 "memorandum of input."

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 on 13 November 1984, completed training in nuclear-biological-chemical (NBC) defense, and was awarded military occupational specialty 54E.

3.  From December 1986 to January 1989 he was stationed in Germany where he was apparently reduced in rank on at least one occasion that is no longer of record.  He then advanced to pay grade E-4 and completed the Primary Leadership Development Course at the Fort Stewart, Georgia, noncommissioned Officer (NCO) Academy.

4.  He transferred to Hawaii in January 1989 and was promoted to sergeant on 1 June 1989.

5.  On 25 January 1991, he was awarded the Army Good Conduct Medal (2nd Award).

6.  The record contains a copy of a 12 February 1991 letter from the applicant to a U.S. Senator in which he admitted that he had not been a model Soldier.  He wrote, "we make mistakes.  I've made some of them more than once.  My mistakes and problems consist of marital, financial and timeliness.  Marital speaks for itself, timeliness was being late to work a lot…last but not least is financial, I've made the mistake of bouncing checks on more than one occasion…These are the major things in my past that blemish my military career…"  The applicant went on to complain that his chain of command had cancelled his attendance at the Basic NCO Academy Course because of his past history.  He asked for help in getting reinstated for the course.

7.  On an NCO Evaluation Report (NCOER) for the period ending May 1991 the applicant was:

	a.  rated "No" for the Values/NCO Responsibilities of "Is disciplined and obedient to the spirit and letter of a lawful order" and "Maintains high standards of personal conduct on and off duty."   The associated bullet comments were:

* sometimes displays the lack of self discipline needed
* personal life is a slight deterrent to duty performance

	b.  also rated as needing improvement in Physical Fitness and Military Bearing and in Leadership.  The associated bullet comments were:

* has the ability but fails at times to present the image of an NCO
* has problems selecting hard right over easy wrong
* must place more emphasis on setting a good example
* failed to be at appointed place of duty several times during rating period
* needs to improve personal conduct during off duty time

	c.  the rater rated the applicant's overall potential as "Marginal."  The senior rater rated him as "Fair" in both overall performance and overall potential.  The senior rater commented:

* demonstrates superior job performance
* allows personal problems to interfere with daily responsibilities
* must learn to handle personal problems before assuming roles of higher responsibility

8.  On 29 October 1991, the applicant accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for absence from the morning accountability formation on 3 consecutive days.  The punishment consisted of reduction to pay grade E-4, forfeiture of $583.00 pay per month for 1 month, and extra duty for 45 days.

9.  The applicant was AWOL from 14 November 1991 until he surrendered to military police in San Francisco on 3 February 1992.

10.  When charges were preferred for that offense, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial.

11.  In his request for discharge, the applicant indicated/acknowledged that he:

* understood that by requesting discharge he was admitting guilt to the charge against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge
* understood that, if his discharge request was approved, he could be deprived of many or all Army benefits
* could be ineligible for many or all benefits administered by the Department of Veterans Affairs and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws

12.  The applicant attached a statement saying that the reasons for his AWOL included marital, financial, work and mental stress.  He had also sustained a knee injury in October 1991.  He requested the chapter 10 discharge "to resolve his marital problems…I hope that you will see the need to grant me a general (under honorable conditions) discharge."

13.  The officers in the applicant's chain of command recommended an under other than honorable conditions discharge.

14.  The discharge authority approved the applicant's request and directed the issuance of an under other than honorable conditions discharge.

15.  On 23 March 1992, the applicant was discharged in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10.  He had completed 7 years, 1 month, and 22 days of creditable active service and had 50 days of AWOL.  The first entry in item 18 of his DD Form 214 reads "Continuous Honorable active service from 41113-911114 [sic]."

16.  On 23 July 1995, the Army Discharge Review Board considered the applicant's entire record as well as his contentions that he and many members of his unit were the victims of racial discrimination and that he also had financial and family problems.  The members noted that there was no substantiating evidence of record and that he had submitted none and voted to deny his request to upgrade the discharge.

17.  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.

18.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for any AWOL offense of 30 days or more.

19.  Army Regulation 600-8-19 (Enlisted Promotions and Reductions), paragraph 10-1d, provides that when a Soldier is to be discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.

20.  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.  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.

21.  The applicant's submissions with this appeal included two "memoranda of input" that were originally submitted to support his request for a general discharge under honorable conditions.  These included:

	a.  A 15 July 1990 memorandum from Second Lieutenant P____, the battalion chemical officer, stating that the applicant had unmatched organizational ability.  He cited past inspections to show that the applicant was the most efficient NBC NCO.  The applicant was praised for his abilities as an instructor.  He could be counted upon to accomplish any assignment and was an inspiration to other NCO's.

	b.  Staff Sergeant M____, the battalion chemical NCO, wrote that the applicant had demonstrated dynamic leadership and acute judgment that led to mission accomplishment in several enumerated instances.  He believed the applicant to be an outstanding NCO of the highest caliber.
DISCUSSION AND CONCLUSIONS:

1.  The applicant states he accepts full responsibility for his actions that led to the discharge.  However, he should have been reduced only one pay grade.  His service should be characterized as honorable because he served continuously with honor from his original enlistment until 14 November 1991.  The "memoranda of input" show the characterization of his service was unjustified and inequitable.  It was based on one isolated incident in 7 years of service.

2.  Because he was being separated with an under other than honorable conditions discharge, the applicant's reduction to pay grade E-1 was required under the promotions and reductions regulation.  Army Regulation 27-10 dealing with military justice, including reductions under the UCMJ, was and is irrelevant.

3.  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.  There is no indication that the request was made under coercion or duress.

4.  Quite simply, he chose to request an administrative discharge rather than risk the consequences of a court-martial.  A discharge for cause is characterized not only by the quality of the individual's service, but also by the circumstances surrounding the discharge itself.  In this instance, the applicant's behavior in committing an offense for which he could receive a punitive discharge and then requesting discharge rather than face the consequences of his behavior hardly argues for giving him the benefit of the doubt.

5.  Actually, his service was really not that great.  Notwithstanding the many positive aspects of his record -- especially his promotions, the Army Good Conduct Medals, and his ability as an instructor as evidenced by the battalion chemical officer's "memorandum of input" -- the applicant's career was on the skids as his own 12 February 1991 letter attests.  And that was before a mediocre NCOER and Article 15 that imposed serious punishments.  The under other than honorable conditions discharge appears highly appropriate.

6.  Given the misconduct of record and the applicant's voluntary request for discharge, the two "memoranda of input" do nothing to demonstrate an inequity in the characterization or the discharge.  This is especially so when they are dated more than 15 months prior to the AWOL that led directly to the discharge process.

7.  The discharge proceedings were conducted in accordance with the law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

8.  The item 12 entry of the DD Form 214 that reads "41114" is a harmless typographical error that could neither be misunderstood nor lead to any injustice because the individual periods of enlistment/reenlistment are also listed.

9.  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 this requirement.

10.  In view of the foregoing there is no basis for granting the applicant's 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)                                         AR20090016450



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ABCMR Record of Proceedings (cont)                                         AR20090016450



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