BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090019706 


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 that his under other than honorable conditions discharge be upgraded.

2. The applicant states, he was not treated fairly and he was manipulated by his chain of command into accepting an under other than honorable conditions discharge.  He also states that since his discharge from the service he has been a law-abiding member of society.

3.  The applicant provides no additional documentation in support of this case.

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 enlisted in the Regular Army on 11 October 1978.  He successfully completed basic training and advanced individual training.  The applicant was awarded military occupational specialty 63B (Power Generator and Wheel Vehicle Mechanic).  

3.  On 21 January 1986, the applicant received a General Officer Memorandum of Reprimand (GOMOR) for being apprehended and convicted by civil authorities for driving under the influence (DUI) twice.

4.  On 29 January 1986, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for wrongful use of marijuana.

5.  On 4 March 1986, the applicant accepted NJP under Article 15, UCMJ for failure to be at his appointed place of duty.

6.  A DD Form 458 (Charge Sheet), dated 26 March 1986, shows charges were preferred against the applicant for two specifications of failure to be at his appointed place of duty, disobeying a lawful order from a commissioned officer, wrongful use of marijuana, and writing a bad check at the Army, Air Force Exchange Service.

7.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service-in lieu of court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations).  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, and that he may be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also acknowledged he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He did not submit a statement in his own behalf.

8.  On 8 April 1986, the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of court-martial under the provisions of chapter 10, Army Regulation 635-200.  On 10 April 1986, he was discharged with an under other than honorable conditions discharge.  He completed 7 years, 5 months, and 28 days of total creditable active service with 35 days of lost time. 



9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of this 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 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. An under other than honorable conditions discharge is normally considered appropriate.

10.  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 his chain of command treated him unfairly and manipulated him into accepting an under other than honorable conditions discharge.  There is no evidence and the applicant has not provided evidence that support these contentions.  In fact, if he believed this, he had the opportunity to make a statement wherein he could have raised these issues during his separation process and failed to do so.  Therefore, there is no basis for this argument.

2.  The applicant's post service conduct is noteworthy.  However, good post service conduct alone is not a basis for upgrading a discharge and, upon review, the applicant's good post service conduct is not sufficient to mitigate his indiscipline while in the Army.

3.  The applicant's administrative separation was accomplished in accordance with applicable regulations with no indication of procedural errors that would jeopardize his rights.

4.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.



5.  The applicant's records show that he received two GOMORs for DUIs, he received two Article 15s, had numerous failures to repair, had been convicted of driving under the influence by civil authorities (twice), and he had tested positive for the wrongful use of marijuana.  The applicant had completed 7 years, 
5 months, and 28 days of total creditable active service with 35 days of lost time due to being in civil confinement.  Based on these facts, the applicant’s service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel which are required for the issuance of a general or 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)                                         AR20090019706



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ABCMR Record of Proceedings (cont)                                         AR20090019706



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