BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000581 


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 his discharge was inequitable because it was based on one isolated incident in 16 years of service.

3.  The applicant provides a letter from his Co-Pastor/Outreach Crisis Coordinator.

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 18 November 1975.  He completed initial entry training, was awarded the military occupational specialty of light wheel vehicle mechanic and was promoted to pay grade E-5.

3.  The applicant served continuously through reenlistments or extension of his enlistments until his discharge.

4.  A Defense Counsel Questionnaire and Sworn Statement Staff Judge Advocate form indicates the applicant had previously accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions.

5.  The applicant's records show he was charged with wrongfully using cocaine on or about 19 April 1991.

6.  On 7 June 1991, the applicant voluntarily requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  He acknowledged that he was not subjected to coercion with respect to his request for discharge and that he had been advised of the implications that were attached to his request.  He further acknowledged that by submitting his request for discharge, he was admitting to being guilty of a charge against him or of a lesser included offense therein contained which also authorizes the imposition of a bad conduct or dishonorable discharge.  

7.  The applicant consulted with counsel and he was advised of his rights.  He acknowledged he understood that if his discharge request was approved, he might be discharged under conditions other than honorable and furnished an Under Other than Honorable Conditions Discharge Certificate.  He acknowledged that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he might be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged that he understood he may expect to encounter substantial prejudice in civilian life by reason of an under other than honorable conditions discharge.  He chose not to submit a statement in his own behalf.

8.  On 13 June 1991, the applicant's unit commander recommended approval of his request for discharge.

9.  On 18 June 1991, the separation authority approved the applicant's request for discharge under the provisions of chapter 10, Army Regulation 
635-200, and directed he be given an under other than honorable conditions discharge.
10.  On 24 June 1991, the applicant was discharged accordingly.  The DD Form 214 he was issued at that time shows he had completed a total of 15 years, 7 months, and 6 days of active military service.

11.  On 26 June 1995, the Army Discharge Review Board denied the applicant's request to upgrade his under other than honorable conditions discharge.

12.  A letter from the applicant's co-pastor indicates he has been a hard worker, pleasant to be around, and had shared with young people about his poor choices.  

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a bad conduct or dishonorable discharge may submit a request for discharge for the good of the service.  At the time of the applicant's separation, an under other than honorable conditions discharge was appropriate.

14.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

15.  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 records show he accepted NJP on two occasions and he was charged with wrongful use of cocaine.  The applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he admitted guilt to the charge or of a lesser included offense which authorized the imposition of a bad conduct or dishonorable discharge.  This serious misconduct warranted a discharge under other than honorable conditions.

2.  The applicant's entire military record and his post-service conduct were taken into consideration but, given the seriousness of the offense, his service is appropriately characterized.

3.  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)                                         AR20100000581



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)