IN THE CASE OF:	  

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20090021521 


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 a general discharge. 

2.  The applicant states he wants his discharge upgraded to receive Department of Veterans Affairs (VA) benefits.

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 that he enlisted in the Regular Army on 15 November 1984.  He was awarded the military occupational specialty of wheel vehicle repairer.  The highest rank/grade he held was private/E-1.

3.  Records show the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 28 May 1985 for willfully disobeying an order.  

4.  On 4 September 1985, the applicant was charged with being absent without authority during the period 3 June to 28 August 1985.

5.  On 5 September 1985, the applicant voluntarily requested in writing a discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  The applicant stated that he understood he could request this discharge for the good of the service because charges (absent without authority during the period 3 June to 28 August 1985) had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.

6.  He acknowledged that he was making the request of his own free will and that he had been advised of the implications that were attached to his request.  He acknowledged that by submitting his request he was admitting guilt to the charge or of (a) lesser included offense(s) therein contained which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that prior to completing his request for discharge he had been afforded the opportunity to consult with appointed counsel for consultation and was fully advised of the nature of his rights under the UCMJ.

7.  He further acknowledged he understood that if his discharge request was accepted, he may be discharged under conditions other than honorable and furnished an Under Other Than Honorable Discharge Certificate.  He acknowledged that he had been advised and that he understood the possible effects of an under other than honorable discharge, and that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 8 October 1985, the separation authority approved the discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He directed a discharge under other than honorable conditions.

9.  The applicant was discharged from active duty on 7 November 1985 with an under other than honorable conditions discharge.  The DD Form 214 he was issued shows he completed 8 months and 28 days of net active service.  Item 29 (Dates of Time Lost during this Period) contains the entry, "850603-850827."

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 the version of that regulation in effect at the time, provided that a member who had committed an offense or offenses the punishment for which, under the UCMJ and the Manual for Courts-Martial, 1984, included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service.  At the time of the applicant's separation, an under other than honorable discharge was normally appropriate for a member who was discharged for the good of the service.

12.  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.  Records show the applicant accepted NJP for willfully disobeying an order.  He was also charged with being absent without authority for 85 days.  This serious misconduct warranted a discharge under other than honorable conditions.

2.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, he admitted guilt and requested discharge for the good of the service in lieu of court-martial.

3.  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 a general discharge.



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

5.  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.




      _______ _   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)                                         AR20090021521



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ABCMR Record of Proceedings (cont)                                         AR20090021521



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