IN THE CASE OF:	  

		BOARD DATE:	 3 December 2009

		DOCKET NUMBER:  AR20090018887 


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, in effect, that his discharge under other than honorable conditions be upgraded to general.      

2.  The applicant states that while he was in the service he made some mistakes which he now regrets.  He is deeply sorry.  He had the opportunity to serve his country both in war and peace and enjoyed every minute of it.  Since his discharge he has worked in a national cemetery where he has helped to bury both active and inactive service members and it has really touched him.  There was an incident where a back hoe operator accidently knocked open a coffin exposing the Soldier.  The applicant informed the operator of what happened but the operator just continued to bury the Soldier.  The incident so upset the applicant that he informed the proper personnel who had the Soldier excavated, cleaned up, and properly reburied.  This incident made the applicant think about the mistakes he made while in the service.  He would like his discharge upgraded before he departs this world.  

3.  The applicant provides no additional documentation 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.  On 13 August 1987, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty (MOS) 72E (Tactical Telecommunications Center Operator).

3.  On 29 January 1988, the applicant departed Fort Gordon, Georgia, for duty in Europe.  He was subsequently assigned to Headquarters and Headquarters Company, 1st Signal Battalion.

4.  On 1 August 1988, the applicant was promoted to specialist, pay grade E-4.

5.  Charges were preferred under the Uniform Code of Military Justice (UCMJ) on 13 December 1991.  Charge I was for violation of Article 92, for failure to obey a general order or regulation, during the period from on or about 1 September 1990 to on or about 18 July 1991, by wrongfully selling rationed merchandise; by wrongfully purchasing goods sent from the United States to produce income; by wrongfully purchasing and possessing rationed goods in excess of reasonable amounts for personal use; by wrongfully possessing more than one ration card made out in the applicant's name during a ration card period; by wrongfully altering or forging a ration card and possessing a ration card he knew was altered or forged; by wrongfully reporting that a ration card had been lost, stolen, or destroyed; by wrongfully transferring ration cards to another person; and by wrongfully assisting a person not authorized to purchase rationed merchandise to obtain rationed merchandise.  Charge II was for violation of Article 134 (six specifications).  Specification one was for wrongfully communicating a threat.  Specification two was for wrongfully possessing three military identification cards.  Specification three was for wrongfully soliciting another Soldier to disobey a general regulation.  Specification four was for wrongfully having sexual intercourse with another Soldier, a married woman not his wife.  Specification five was for wrongfully and unlawfully making under lawful oath false statements.  Specification six was for wrongfully offering to another Soldier exemption from weekend duty with the intent to influence that Soldier with regard to an official matter in which the United States had an interest.


6.  On 20 December 1991, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, 
chapter 10. 

7.  In his request for discharge, the applicant indicated 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.  He further acknowledged he understood that if his 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 Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

8.  On 22 January 1992, the separation authority approved the applicant’s request for discharge and directed that his service be characterized as under other than honorable conditions.  On 29 January 1992, the applicant was discharged accordingly.  He had completed a total of 4 years, 5 months, and 
17 days of creditable active military service.  

9.  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.

10.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.   Under the UCMJ, the maximum punishment allowed for violation of Article 92, for failure to obey a general order or regulation, is a punitive discharge and confinement for 2 years; and for violation of Article 134, for communicating a threat, it is a punitive discharge and 3 years confinement.


12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

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.

DISCUSSION AND CONCLUSIONS:

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

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met.  The rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's request.






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)                                         AR20090018887





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ABCMR Record of Proceedings (cont)                                         AR20090018887



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