BOARD DATE:	  March 4, 2010

		DOCKET NUMBER:  AR20090016614 


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 a general discharge.

2.  The applicant states, in effect, that during his duty at Fort Carson he was the word processor for the S-3, that he was the guidon bearer for Headquarters and Headquarters Company, and that he went from E-1 to E-4 in his short time at Fort Carson.  He indicates that he was involved in an altercation with a co-worker in his shop that led to his first Article 15, that he non-concurred with the accusations and won the appeal, and that he was then told by his noncommissioned officer in charge and his commanding officer that he was going to lose his rank because of his victory.

3.  The applicant further states that he refused an order and was restricted to his barracks.  He goes on to state that he was arrested 3 days later in his barracks for being absent without leave (AWOL) (three specifications) and for being disrespectful to a commanding officer.  He was then told by a Judge Advocate General lawyer that the only way he could avoid court-martial proceedings was to plead guilty and sign a chapter 10.  He claims that until this incident he had never been incarcerated nor spent any time in civilian jail.  He indicates that he was told his discharge would be changed 6 months or 1 year after his discharge and that his discharge has unfairly kept him from getting a decent job.  He points out that he spent 40 days in jail and was almost killed by an irate Soldier in his cell.  He also contends that he has been a law-abiding citizen for the past 23-plus years and that he has not gotten into any type of trouble that resembles what happened to him at Fort Carson in 1986.
4.  The applicant provides no documentary 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 enlisted in the Regular Army on 1 May 1984 for a period of 4 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantryman).

3.  On 6 February 1986, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to E-3, a forfeiture of pay, restriction, and extra duty.

4.  On 17 March 1986, nonjudicial punishment was imposed against the applicant for using marijuana and cocaine.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

5.  The applicant went AWOL on 7 May 1986 and was apprehended by military authorities and returned to duty on 8 May 1986.  Records show he was placed into pre-trial confinement on 9 May 1986.

6.  On 16 May 1986, charges were preferred against the applicant for two specifications of being AWOL from 8 April 1986 to 10 April 1986 and on 23 April 1986 for 7 hours and 15 minutes, three specifications of failing to go at the time prescribed to his appointed place of duty, two specifications of disobeying a lawful order, and violating pass privileges.

7.  On 19 May 1986, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated that when he joined the service he really enjoyed it, but when he arrived at Fort Carson his attitude changed.  He was not sure if it was him or his command but he could no longer cope with military life and a discharge at that time was in his and the military's best interests.

8.  The intermediate commanders recommended that the applicant receive a general discharge.

9.  On 25 June 1986, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

10.  Accordingly, the applicant was discharged under other than honorable conditions on 8 July 1986 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served a total of 2 years, 2 months, and 7 days of creditable active service with 1 day of lost time due to AWOL.

11.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  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.

13.  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.

14.  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 requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

DISCUSSION AND CONCLUSIONS:

1.  A discharge upgrade is not automatic.

2.  A discharge is not upgraded for the purpose of obtaining employment opportunities.

3.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

4.  The applicant's record of service included two nonjudicial punishments, numerous offenses for which court-martial charges were preferred, and 1 day of lost time.  As a result, his record of service was not satisfactory.  Therefore, the applicant's record of service is insufficiently meritorious to warrant a general or an honorable discharge.

5.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

6.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090016614





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ABCMR Record of Proceedings (cont)                                         AR20090016614



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