IN THE CASE OF:	  

		BOARD DATE:	    6 May 2010

		DOCKET NUMBER:  AR20090019045 


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, through his Member of Congress, an upgrade of his under other than honorable conditions discharge to a general under honorable conditions discharge.

2.  The applicant did not make a statement.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 26 August 1983 and a statement of support, dated 25 July 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 records show he enlisted in the Regular Army on 12 June 1979 and held military occupational specialty 19D (Cavalry Scout).  The highest rank/grade he attained during his military service was specialist four (SP4)/E-4.

3.  His records also show he served in Germany from on or about 5 April 1981 to on or about 25 August 1983 and that he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar, Army Service Ribbon, and Overseas Service Ribbon.

4.  His records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 28 April 1982, for twice failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $177.00 pay per month for one month and 14 days of extra duty.

	b.  On 13 August 1982, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private first class/E-3, a forfeiture of $171.00 pay per month for one month, and 14 days of restriction and extra duty.  He appealed his punishment on 31 August 1982 and he was granted partial relief in that all punishment in excess of the reduction and extra duty was ordered set aside.

	c.  On 25 January 1983, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to private/E-2, a forfeiture of 7 days pay, and 14 days of restriction and extra duty.

5.  On an unknown date in 1983, court-martial charges were preferred against him for two specifications of wrongfully distributing 2.03 grams more or less and 6.61 grams more or less of marijuana in the hashish form on 6 and 19 May 1983.

6.  On 2 August 1983, he consulted with legal counsel and he was advised 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 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 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.


7.  In his request for discharge, he indicated that he was making this request for discharge of his own free will and had not been subjected to any coercion by any person.  He also indicated he understood 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 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."

8.  On 5 and 8 August 1983, his immediate and senior commanders recommended disapproval of his request for discharge.

9.  On 9 and 10 August 1983, his intermediate commander and his supporting staff judge advocate recommended approval with the issuance of an under other than honorable conditions discharge.

10.  On 10 August 1983, the separation authority approved the applicant's 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 26 August 1983.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court martial with a characterization of service of under other than honorable conditions.  This form shows he completed
4 years, 2 months, and 15 days of creditable active service.

11.  On 3 October 1984 and 11 September 1996, the Army Discharge Review Board denied his petitions for an upgrade of his discharge.

12.  He submitted a statement of support, dated 25 July 2009, from a friend who states that he had known the applicant for many years and that since 2003 he had been a very responsible and contributing member to the community.  He also describes him as a gifted contractor who uses his talents to help senior citizens and recommends the Board look favorably upon his request.

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, 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.  The applicant's 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 his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  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 a general 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)                                         AR20090019045



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ABCMR Record of Proceedings (cont)                                         AR20090019045



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