IN THE CASE OF:	  

		BOARD DATE:	  4 May 2010

		DOCKET NUMBER:  AR20090018271 


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 an honorable discharge.

2.  The applicant states he wants to join various veterans groups and to become eligible for much-needed treatment and counseling to address issues that led to his discharge.  He offers that his discharge was issued based on two closely-related incidents in an otherwise excellent 2 1/2 years of service.  The applicant maintains that he was always a very dedicated Soldier who was proud of his record, awards, accomplishments, and performance.

3.  The applicant does not provide any additional documents 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 record shows he enlisted in the Regular Army and entered active duty on 21 July 1982.  He served in Korea from 12 January 1983 to 8 February 1984.

3. Item 13 (Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized) of the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the Army Service Ribbon, Army Achievement Medal, Driver and Mechanic Badge, Overseas Service Ribbon, Army Commendation Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

4.  On 29 January 1985, charges were preferred against the applicant for two separate specifications of wrongfully and falsely making, forging, possessing, and using U.S. Forces Identification Cards with intent to deceive between 5 April 1984 and 21 November 1984 and on or about 12 October 1984.

5.  On 4 February 1985, the applicant consulted with his counsel and requested a discharge for the good of the service in lieu of trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).

6.  The applicant signed his request for discharge which showed that he was making the request of his own free will, that he was afforded the opportunity to speak with counsel, that he may be deprived of many or all Army benefits, and that he may expect to encounter substantial prejudice in civilian life because of discharge under other than honorable conditions.  The applicant elected not to provide a statement on his behalf.

7.  On 11 February 1985, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial.

8.  The applicant's DD Form 214 shows he was discharged under other than honorable conditions on 15 February 1985.  The applicant had completed 2 years, 6 months, and 25 days of creditable active service.

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


10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides 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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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.

12.  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 evidence of record shows the applicant's request for separation under provisions of chapter 10 of Army Regulation 635-200 for the good of the service to avoid trial by court-martial was voluntary, administratively correct, and in compliance with applicable regulations.

2.  The applicant argues that he served honorably for the first 2 1/2 years of his enlistment and was proud of his record, awards, accomplishments, and performance.  The fact that the applicant served faithfully for over 2 years and was awarded the Army Commendation Medal, Army Achievement Medal, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Driver and Mechanic Badge is not sufficient justification to upgrade his discharge.

3.  The applicant also contends that his discharge should be upgraded so that he can join various veterans groups and obtain veterans' benefits.  Unfortunately, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veterans' benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.

4.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an 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)                                         AR20090018271



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ABCMR Record of Proceedings (cont)                                         AR20090018271



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