IN THE CASE OF:	

		BOARD DATE:	  06 April 2010

		DOCKET NUMBER:  AR20090017685 


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 or general, under honorable conditions discharge.

2.  The applicant states that his lawyer worked with the prosecutor.  They did not have a case and scared him into signing a chapter 10.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Releaser or Discharge from Active Duty) for the period ending 9 June 1983; and a copy of a Standard Form (SF) 180 (Request Pertaining to Military Records), dated
22 September 2009.

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 record shows he enlisted in the Regular Army on 31 July 1980 and held military occupational specialty 11B (Infantryman).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  His records also show he served in Korea from on or about 27 January 1982 to on or about 7 June 1983 and that he was awarded the Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar.

4.  On 28 March 1983, his command preferred court-martial charges against him for one specification of possessing some amount of marijuana with intent to distribute on or about 18 February 1983 and one specification of wrongfully distributing some amount of marijuana on or about 18 February 1983.

5.  On 22 April 1983, he consulted with legal counsel who advised him 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 Uniform Code of Military Justice (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, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial in accordance with Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

6.  In his request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  His request also stated, "Moreover, I hereby state that under no circumstances do I desire further rehabilitation, for I have no desire to perform further military service."

7.  On 1 June 1983, the separation authority approved his request for discharge for the good of the service in accordance with Army Regulation 635-200, 
chapter 10 and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  Accordingly, he was 
discharged on 9 June 1983.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court martial with a characterization of service of under other than honorable conditions.  This form confirms he completed 2 years, 10 months, and 9 days of creditable active service.

8.  On 23 December 1996, the Army Discharge Review Board (ADRB) denied his request 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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contends that his discharge should be upgraded.

2.  His record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  All 
requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  There is no evidence he was scared or forced into signing his voluntary request for discharge.  He even stated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.

4. In order to justify correction of a military record, he must show or it must otherwise satisfactorily appear that the record is in error or unjust.  He did not submit sufficient evidence that would satisfy this requirement.  Based on his record of indiscipline, the applicant's service does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable or a general, under honorable conditions 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)                                         AR20090017685



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ABCMR Record of Proceedings (cont)                                         AR20090017685



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