BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090017226 


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 a general, under honorable conditions discharge.

2.  The applicant states he was in the Army for over 7 years and doing well.   When he was accused of something he requested a court-martial hearing.  He states he was young and stupid and has been paying for it ever since.  He states he would like to apply for health care.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three personal references.

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 3 March 1983 at the age of 22.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 91A (Medical Specialist).  He was advanced to specialist four (SP4)/E-4 on 1 February 1985.  He reenlisted on 11 June 1987 and 16 November 1989.

3.  On 19 October 1987, the applicant was assigned to the U.S. Army Medical Department Activity at Fort Belvoir, VA.

4.  The exact circumstances that led up to the applicant's discharge and his complete discharge processing package are not available for review.

5.  On 2 May 1990, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Personnel Separations), chapter 10, for the good of the service because of the following charges that had been preferred against him

* two specifications of indecent assault

* two specifications of willful dereliction of duty

6.  He acknowledged he understood the elements of the offense he was charged with and he was

* making the request of his own free will

* guilty of the offense with which he was charged

* afforded the opportunity to speak with counsel prior to making this request

   * advised he may be furnished an under other than honorable conditions discharge

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 

* would be deprived of many or all Army benefits

* may be ineligible for many or all Department of Veterans Affairs 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

   * maximum permissible punishment authorized under the Uniform Code of Military Justice

* possible effects of an undesirable discharge

* procedures and rights available to him

9.  On 11 May 1990, the appropriate authority approved the applicant's request for discharge for the good of the service.  He directed the applicant be furnished an under other than honorable conditions discharge and reduced to private (PV1)/E-1.

10.  On 29 May 1990, the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10 for the good of the service with a character of service as under other than honorable conditions.  He had completed 7 years, 2 months, and 27 days of net active service this period and 5 months and
28 days of total prior active service.

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.  The applicant provided three personal references that state he is highly self-motivated, very respectful, and courteous towards others.  They also state he is organized, efficient, and extremely competent.  They state he is a valuable asset for any organization and they recommend him for any task where enthusiasm, hard work, and commitment are valued.

13.  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.

14.  Army Regulation 635-200, paragraph 3-7b, states 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.

15.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge.

2.  The applicant contends he was young and stupid at the time and didn't realize the repercussions of his actions.  However, he was 22 years of age at the time of his initial enlistment.  At the time of his request for discharge he was 29 years of age and had slightly over 7 years in the Army.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

3.  The applicant's charge sheet was not available for review.  However, the charges indicated on his request for discharge for indecent assault and willful dereliction of duty are considered serious offenses.  Therefore, his service is determined to be unsatisfactory.

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.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering the charges in this case.


6.  The applicant's post-service conduct is noted.  However, good post-service conduct alone is not normally sufficient for upgrading a properly issued discharge.

7.  The ABCMR does not upgrade discharges based solely on the passage of time nor does it correct records solely for the purpose of establishing eligibility for benefits from another agency.  The granting of veteran's benefits is not within the purview of the ABCMR and any questions regarding eligibility for health care and other benefits should be addressed to the Department of Veterans Affairs.

8.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's other than honorable discharge.

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)                                         AR20090017226



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ABCMR Record of Proceedings (cont)                                         AR20090017226



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