BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090019972 


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 to an honorable discharge.

2.  The applicant states he was under medical treatment for an anxiety attack from being treated for pericardial disease and was not aware of how his under other than honorable conditions discharge would affect his life.

3.  The applicant provides no additional documentary evidence 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 Army on 10 September 1985.  He trained in and was awarded military occupational specialty (MOS) 76P (Materiel Control and Accounting Specialist).

3.  The available records contain a DA Form 4126-R (Bar to Reenlistment Certificate), dated 14 March 1990, with the following information:

	a.  Item 8 (Record of Non-Judicial Punishment) shows he received an 
Article 15 on 3 January 1990 for violation of Article 128.

	b.  Item 9 (Record of Non-Payment of Just Debts) shows he was counseled for the following three bad checks that were written to the Fort Huachuca Exchange:

		(1)  on 21 September 1989, a check written for $150.00. 

		(2)  on 12 December 1989, a check written for $75.58. 

		(3)  on 20 December 1989, a check written for $110.58.

	c.  Item 10 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) shows he was counseled for:

		(1)  excessive personal phone calls on military phones on 18 September 1989.

		(2)  "falsifying a leave request to a supervisor" on 1 September 1989.

4.  The facts and circumstances surrounding the applicant's administrative separation are not present in the available records; however, the records do contain a duly-constituted DD Form 214 signed by the applicant which shows he was discharged on 28 August 1990 under the provisions of Army Regulation
635-200, chapter 10, for the good of the service - in lieu of court-martial with service characterized as under other than honorable conditions.  He had completed 4 years, "17" months, and 19 days of active service.

5.  The applicant's record does not contain any medical evidence indicating he was under treatment for pericardial disease.

6.  Army Regulation 635-200 (Enlisted 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, 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.

   a.  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.

   b.  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 contention that his under other than honorable conditions discharge should be upgraded was carefully considered; however, there is insufficient evidence to warrant relief.

2.  In the absence of evidence to the contrary, the applicant's request for separation under provisions of chapter 10 Army Regulation for the good of the service in lieu of court-martial is presumed to have been voluntary, administratively correct, and in compliance with applicable regulations.

3.  Given the applicant's records show he was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) and he received a bar to reenlistment during prior to being discharged, it appears his record of service was appropriately characterized as under other than honorable conditions.



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)                                         AR20090019972



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ABCMR Record of Proceedings (cont)                                         AR20090019972



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