IN THE CASE OF:	

		BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090019582 


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 a general discharge.

2.  The applicant states he was stationed in Hawaii, but he wanted a transfer to Fort Lewis, WA, to be close to his then pregnant wife.  He was told of many ways to get out of the military, but his request for a transfer was denied.  He did not know what to do.  It has been a long time since he was discharged and he is in need of health care.

3.  The applicant did not provide any documentary evidence in support of his request.

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 18 January 1977 and was assigned to Fort Bliss, TX, for completion of basic combat and advanced individual training.

3.  On 15 February 1977, he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully possessing marijuana.  His punishment consisted of a forfeiture of $187.00 pay per month for 2 months and 30 days of restriction.

4.  On 16 April 1977, he departed his training unit in an absent without leave (AWOL) status; however, he returned on 3 May 1977.

5.  On 4 May 1977, he again accepted NJP under the provisions of Article 15 of the UCMJ for being AWOL from on or about 16 April 1977 through on or about 3 May 1977.  His punishment consisted of a forfeiture of $180.00 pay per month for 2 months and 45 days of restriction and extra duty.

6.  He ultimately completed basic combat and advanced individual training and he was awarded military occupational specialty 16P (Air Defense Artillery (ADA) Short Range Missile Crewmember).  He was reassigned to Schofield Barracks, HI, and was assigned to Battery D, 1st Battalion, 62nd ADA Regiment.

7.  His records reflect an extensive history of counseling for various other infractions including poor military appearance, failure to comply with sick call disposition, negative attitude, missing formation, disobeying orders, unserviceable uniform, and disobedience.  Additionally, he accepted NJP under the provisions of Article 15 of the UCMJ as follows:

	a.  On 1 November 1977, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $75.00 pay (suspended for 90 days) and 14 days of restriction and extra duty.  On the same date, the suspended portion of his punishment of a forfeiture of $75.00 pay was vacated and ordered executed.

	b.  On 14 December 1977, for disobeying a lawful order and failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a forfeiture of $85.00 pay and 14 days of restriction and extra duty.

	c.  On 18 January 1978, for disobeying a lawful order.  His punishment consisted of a forfeiture of $50.00 pay and 14 days of restriction and extra duty.

8.  On 27 February 1977, his immediate commander initiated a bar to reenlistment citing his extensive history of NJP.  The immediate commander stated the applicant had shown no motivation or ambition to improve his performance despite extensive counseling and NJP.  His attitude and conduct adversely affected his squad and platoon and he showed no potential for military service.  He was furnished with a copy of this bar and he elected not to submit a statement on his own behalf.

9.  On 16 March 1978, he departed his unit in an AWOL status and on 14 April 1978 he was dropped from the Army rolls.  He ultimately surrendered to military authorities art Fort Lewis, WA, on 25 April 1978.

10.  The facts and circumstances of his discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 18 May 1978 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a trial by court-martial with an under other than honorable conditions character of service.  This form also shows he completed 1 year, 2 months, and 4 days of creditable active service and he had 57 days of lost time.

11.  There is no indication in his records he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitation.

12.  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.  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.

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.

2.  His record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 18 May 1978 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a trial by court-martial.

3.  The issuance of a discharge under the provisions of chapter 10 of Army Regulation 635-200 required him to voluntarily, willingly, and in writing request discharge from the Army in lieu of a trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He provided no information that would indicate the contrary.  Further, his discharge accurately reflects his overall record of service.

4.  His desire to be with his wife at Fort Lewis, WA, at the time is understandable. 
However, his record does not show he addressed this issue with his chain of command or other support channels or that he requested a transfer or a compassionate reassignment.  In any case, there were many other options he could have used to resolve any personal issues.

5.  Based on his extensive record of indiscipline, his service clearly did 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 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)                                         AR20090019582



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ABCMR Record of Proceedings (cont)                                         AR20090019582



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