IN THE CASE OF:	  

		BOARD DATE:	  19 May 2010

		DOCKET NUMBER:  AR20090019478 


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 needs medical help and has no insurance or income.

3.  The applicant provides no additional documentary evidence in support of this 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 military records show he enlisted in the Regular Army on 24 January 1979.  He was awarded military occupational specialty 64C (motor transport operator).  The highest rank/grade he held was private first class (PFC)/E-3.

3.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions during the period 29 October 1979 to 10 September 1980 for willfully disobeying a lawful order on two separate occasions and for failing to go at the time prescribed to his appointed place of duty on two separate occasions.

4.  On 23 September 1980, the applicant was charged with:
 
* Failing to go at the time prescribed to his appointed place of duty
* Disobeying a lawful order on three separate occasions
* Dereliction in the performance of his duties

5.  On 26 September 1980, a trial by special court-martial was recommended for the applicant's charges.

6.  On 30 October 1980, the applicant voluntarily requested a 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.  The applicant acknowledged he understood he could request discharge for the good of the service because of the charges preferred against him, each of which authorized the imposition of a bad conduct or dishonorable discharge.  The applicant acknowledged he was making the request of his own free will, he was not subjected to any coercion whatever by any person, and he had been advised of the implications that were attached to his request.  He acknowledged that he was guilty of the charges against him or of a lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  The applicant consulted with counsel and was advised of his rights.  He further acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he might be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He chose not to submit a statement in his own behalf.

8.  The applicant's unit commander recommended approval of his request for discharge and recommended that he be discharged under other than honorable conditions.  On 3 December 1980, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed he be issued an Under Other Than Honorable Conditions Discharge Certificate.

9.  On 11 December 1980, the applicant was discharged accordingly.  His DD Form 214 shows he completed a total of 1 year, 10 months, and 18 days of active service.

10.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  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.

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, 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's records show he accepted NJP on three occasions for twice willfully disobeying a lawful order and for twice failing to go at the time prescribed to his appointed place of duty.

2.  The applicant was charged with failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order on three separate occasions, and dereliction in the performance of his duties.  This serious misconduct warranted an under other than honorable conditions discharge.

3.  The applicant admitted he was guilty of the charges against him and requested discharge in lieu of trial court-martial.  He was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.

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

5.  The ABCMR does not upgrade properly issued discharges for the sole purpose of establishing eligibility for other programs or benefits.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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.



      ________________________
               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)                                         AR20090019478



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ABCMR Record of Proceedings (cont)                                         AR20090019478



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