IN THE CASE OF:	 

		BOARD DATE:	  29 June 2010

		DOCKET NUMBER:  AR20100000440 


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.

2.  The applicant states he believes his discharge should be corrected [sic] (upgraded) because he had endured the hardships that his past actions warranted.  However, he does not believe he should have to be punished for the rest of his life.  He needs his discharge upgraded due to denial of Department of Veterans Affairs (VA) benefits.

3.  The applicant did not provide any additional 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 6 September 1989 and held military occupational specialty 52C (Utilities Equipment Repairer). He also executed a 3-year reenlistment on 4 February 1993 and he attained the rank/grade of specialist (SPC)/E-4.

3.  The applicant’s records also show he served in Southwest Asia from 9 September 1990 to 12 April 1991.  He was awarded the National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, Army Good Conduct Medal, Kuwait Liberation Medal, Southwest Service Medal with three bronze service stars, Army Commendation Medal, Air Assault Badge, Expert Marksmanship Qualification Badge with Grenade Bar, and the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On an unknown date in September 1993, court-martial charges were preferred against the applicant for one specification of wrongfully taking, penning, and/or stealing certain mail matters addressed to another individual from the mail room with intent to obstruct the correspondence; and one specification of wrongfully obtaining service from Citibank American Airlines under that individual's name with an intent to defraud.

5.  On 3 May 1994, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct discharge or a discharge under other than honorable conditions, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel and of his own free will without being subjected to any coercion whatsoever by any person, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge the applicant indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions.  He further acknowledged he understood that if the discharge request was approved, he could 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.  Additionally, he also stated "under no circumstances do I desire further rehabilitation for I have no desire to perform further military service."  He also submitted a statement on his own behalf wherein he accepted responsibility for his actions and asked for leniency.
7.  On 27 June 1994, his immediate and intermediate commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge.

8.  On 30 June 1994, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial and directed that he be reduced to private (PV1)/E-1 and issued an under other than honorable conditions discharge.  He was accordingly discharged on 8 July 1994.  The
DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  This form further confirms he completed a total of 4 years, 10 months, and 3 days of creditable active military service.

9.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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.

11.  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’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

2.  The ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  In order to justify correction of a military record, he must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.  Based on his 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 discharge upgrade.

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)                                         AR20100000440



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ABCMR Record of Proceedings (cont)                                         AR20100000440



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