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ARMY | BCMR | CY2010 | 20100000709
Original file (20100000709.txt) Auto-classification: Denied

		IN THE CASE OF:	

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20100000709 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states that while in the service he had a drinking problem but he has changed a lot since being released from the Army.  He believes he should get an upgrade to help him find a better job. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 5 October 1979, and an undated letter from his former employer 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 records show he enlisted in the Regular Army for a period of 3 years on 11 September 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty 16R (Short Range Gunnery Crewman).  The highest rank/grade he attained during his military service was private/E-2.

3.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  On 23 February 1979, for being disrespectful in language towards a superior noncommissioned officer (NCO) and disobeying a lawful order from an NCO.  His punishment consisted of a forfeiture of $97.00 for 1 month (suspended until 24 May 1979), 14 days of extra duty, and 14 days of restriction.

	b.  On 19 April 1979, for being disrespectful in language towards a superior NCO on or about 14 April 1979 and disobeying a lawful order from an NCO on about 14 April 1979.  His punishment consisted of a reduction to private/E-1 and 14 days of extra duty.

	c.  On 9 May 1979, for failing to go at the time prescribed to his appointed place of duty on or about 28 April 1979 and assaulting a Soldier by striking him with a closed fist on or about 28 April 1979.  His punishment consisted of a forfeiture of $200.000 per month for 2 months (suspended for 60 days), 45 days of extra duty (30 days suspended for 60 days), and 45 days of restriction.

	d.  On 14 August 1979, for failing to go at the time prescribed to his appointed place of duty on or about 30 July 1979 and 6 August 1979.  His punishment consisted of a forfeiture of $200.00 per for 2 months and 45 days of extra duty (30 days suspended for 60 days). 

4.  In or around July 1979, court–martial charges were preferred against the applicant for one specification of attempting to steal a tire of a value of about $70.00 on or about 26 July 1979, one specification of wrongfully uttering to the warehouse annex NCO club with intent to defraud and for the procurement of lawful currency a check without having sufficient funds in or credit with such bank.

5.  On 26 September 1979, 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 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, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, he indicated that he was making this request of his own free will and he had not been subjected to any coercion whatsoever by any person.  He also indicated that 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 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 Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 1 and 2 October 1979, his immediate, intermediate, and senior commanders recommended approval of his discharge with the issuance of an under other than honorable conditions character of service.

8.  On 3 October 1979, the separation authority approved the applicant's request for discharge for the good of the service in accordance with chapter 10 of Army Regulation 635-200 and directed he receive an under other than honorable conditions discharge.  On 5 October 1979, he was accordingly discharged.  The DD Form 214 he was issued at the time of his discharge shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions.  This form further confirms he completed 1 year and 25 days of creditable active service.

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

10.  He submitted a letter from his former employer who describes the applicant as a personable and likeable person.  He also describes him as a good worker who can be trusted. 

11.  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.

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.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to a general discharge, because he had a drinking problem and the upgrade would help him to get a better job was carefully considered and found to be insufficient in merit.  

2.  His record shows he was charged with the commission of an offense 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.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

4.  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.  He 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 general discharge.






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)                                         AR20100000709



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ABCMR Record of Proceedings (cont)                                         AR20100000709



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