BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20090021830 


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 his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states he was having marital problems at the time and he did not know how to handle it.

3.  The applicant provides a report of psychiatric evaluation in support of his 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 enlisted in the Regular Army on 4 November 1975 for a period of 3 years.  He successfully completed basic training and advanced individual training.  He was awarded military occupational specialty 63C (track vehicle mechanic).

3.  On 10 August 1976, nonjudicial punishment was imposed against the applicant for using disrespectful language to a superior commissioned officer.  His punishment consisted of a reduction to E-1, a forfeiture of pay, and extra duty.

4.  On 28 October 1976, nonjudicial punishment was imposed against the applicant for being absent without leave from 11 September 1976 to 13 September 1976, failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order, resisting apprehension, and being drunk and disorderly.  His punishment consisted of restriction and extra duty.

5.  On 14 March 1977, nonjudicial punishment was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to E-1 (suspended), a forfeiture of pay, and correctional custody.

6.  On 4 May 1977, charges were preferred against the applicant for disobeying two lawful commands and three specifications of breaching the restraint imposed (correctional custody) by leaving the area, going to the snack bar, and going to the post exchange.  Trial by special court-martial was recommended.

7.  On 6 May 1977, the applicant consulted with counsel and requested discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.

8.  On 18 May 1977, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

9.  On 26 May 1977, the applicant underwent a psychiatric evaluation.  The pertinent history section of the AE Form 1087 (Report of Psychiatric Evaluation) states the applicant's presenting problem centered around inabilities to comply with perceived unreasonable demands in his unit, a pending chapter 10 discharge, and marital problems.  The psychiatrist found the applicant psychiatrically cleared for any administrative action deemed necessary by his command.  Separation from the service was recommended.

10.  Accordingly, the applicant was discharged under other than honorable conditions on 17 June 1977 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had served 1 year, 7 months, and 14 days of creditable active service.

11.  On 28  July 1986, the Army Discharge Review Board denied the applicant's request for an honorable discharge.

12.  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.

13.  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.

14.  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.  Marital problems are not normally grounds for upgrading a discharge.  There is no evidence of record to show the applicant sought assistance from his chain of command or chaplain for a way to resolve his problems within established Army procedures.

2.  The applicant's record of service included three nonjudicial punishments and serious offenses for which special court-martial charges were preferred.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge or a general discharge.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns and he failed to do so.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

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)                                         AR20090021830



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ABCMR Record of Proceedings (cont)                                         AR20090021830



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