IN THE CASE OF:	  

		BOARD DATE:	  15 July 2010

		DOCKET NUMBER:  AR20100000853 


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 to a general discharge under honorable conditions.

2.  The applicant states that this is his second attempt to upgrade his discharge.

   a.  He states he entered the Army at the age of 17 and he had three breaks in service.

       (1)  He served honorably in the Alabama Army National Guard (ALARNG) from 1988 to 1991 and on active duty in the Regular Army (RA) from 1991 to 1995.

       (2)  He served on active duty in the RA from 1997 to 2004 and was discharged under other than honorable conditions in lieu of court-martial.  At the time he could not afford a civilian attorney.  He was depressed, suicidal, and his chain of command told him it would not support him.  He adds he feels he was pressured into taking the discharge that he was issued.

   b.  He states he has not been able to adjust to normal society and he is currently in a halfway house after a 2-year sentence.  He also states he is homeless, has no medical or dental benefits, and would like to have someone represent him and talk to a medical counselor about his situation.


   c.  He requests that the Board review his military personnel records in conjunction with his request for upgrade of his discharge.  He adds that he should be entitled to receive veteran's benefits based on his prior periods of honorable service.

3.  The applicant provides no 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 enlisted in the Army National Guard of the United States (ARNGUS) and ALARNG for a period of 8 years on 13 October 1988.

3.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 8 June 1989; he was released from initial active duty training on 15 September 1989, with a character of service of "uncharacterized"; and was transferred to his ALARNG unit.  At the time he had completed 3 months and 8 days of net active service and 7 months and     25 days of total prior inactive service.

   a.  Item 11 (Primary Specialty Number, Title, and Years and Months in Specialty) shows he was awarded military occupational specialty (MOS) 13B1O (Cannon Crewman).

   b.  Item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized) shows the Army Service Ribbon and Marksman Marksmanship Qualification Badge with (M-16) Rifle and Grenade Bars.

4.  A National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service) shows the applicant enlisted in the ARNGUS and ALARNG on
13 October 1988, he was honorably separated on 7 October 1991 based on unsatisfactory participation, and transferred to the U.S. Army Reserve (USAR) Control Group (Annual Training) to complete his Reserve obligation.  At the time he had completed 2 years, 11 months, and 25 days of net service this period.

5.  A DD Form 214 shows the applicant entered active duty from the Regular Army this period on 1 October 1991, he was honorably released from active duty on 29 September 1995 based on completion of required service, and transferred to the USAR Control Group (Reinforcement).  At the time he had completed        3 years, 11 months, and 29 days of net active service this period.  Item 13 shows the Army Lapel Button, National Defense Service Medal, Army Service Ribbon, Overseas Service Ribbon, and Expert Marksmanship Qualification Badge with Rifle Bar.

6.  The applicant enlisted in the RA for a period of 3 years on 11 June 1997.  On 25 March 1999, he reenlisted for a period of 3 years.  He then reenlisted in the RA for a period of 4 years on 29 January 2002 for training in MOS 92G (Food Service Specialist).

7.  Records show charges were preferred against the applicant on 21 January 2004.  However, the applicant's military personnel records do not contain a copy of a DD Form 458 (Charge Sheet).

8.  On 1 March 2004, the applicant consulted with counsel and voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.

   a.  He acknowledged the charges and specifications that had been preferred again him under the Uniform Code of Military Justice, at least one of which authorized the imposition of a bad conduct or dishonorable discharge.  He specifically acknowledged:  Charge I, Article 92, with 2 specifications of violation of a general regulation/order and Charge II, Article 134, with 2 specifications of indecent assault/indecent acts.

   b.  He was afforded the opportunity to consult with counsel.  He was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Department of Veterans Affairs, that he may be deprived of his rights and benefits as a veteran under both Federal and State law, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.
   c.  He was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that statements in his own behalf were not submitted with his request.

9.  The company and battalion commanders recommended approval of the applicant's request for discharge with a character of service of under other than honorable conditions.  The Commander, 19th Theater Support Command, recommended disapproval of the applicant's request for discharge.

10.  On 4 March 2004, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  The commander also directed the applicant be reduced to the lowest enlisted grade and discharged with a characterization of service of under other than honorable conditions.  Accordingly, the applicant was discharged on 20 March 2004 and issued a DD Form 214.

11.  The applicant's DD Form 214 shows he entered active duty this period on
11 June 1997 and he was discharged on 20 March 2004 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with service characterized as under other than honorable conditions.  At the time he had completed 6 years, 9 months, and 10 days of net active service this period.

   a.  Item 13 shows the Army Commendation Medal, Army Achievement Medal, Army Good Conduct Medal (2nd Award), National Defense Service Medal
(2nd Award), Korean Defense Service Medal, Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and Air Assault Badge.

   b.  Item 14 (Military Education) shows he completed the Food Service Specialist Course in August 1997, Primary Leadership Development Course in September 1998, Combat Lifesaver Course in 1998, and Air Assault School in May 1994.

   c.  Item 18 (Remarks) shows he had continuous honorable active service from 11 June 1997 through 24 March 1999.

12.  On 14 July 2004, the applicant submitted a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) to the Army Discharge Review Board (ADRB) requesting upgrade of his under other than honorable conditions discharge.  On 23 February 2005, the ADRB, after consideration of the applicant's request, military records, and all other available evidence, determined the applicant's discharge was proper and equitable.  Accordingly, the applicant's request was denied and he was notified of the ADRB's decision.

13.  The Manual for Courts-Martial, Table of Maximum Punishments, sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  A punitive discharge is authorized for offenses under Article 92 for failure to obey an order or regulation and Article 134 for indecent assault/ indecent acts.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides 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.

   b.  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 contends his under honorable conditions discharge should be upgraded to a general discharge under honorable conditions based on his overall record of military service, so that he may qualify for veteran's benefits.

2.  The applicant's contention was carefully considered.  Records show that:

   a.  the applicant's honorable service in the ARNGUS and ALARNG during the period from 13 October 1988 through 7 October 1991 is documented on his
7 October 1991 NGB Form 22;

   b.  the applicant's honorable active duty service in the RA during the period from 1 October 1991 through 29 September 1995 is documented on his
29 September 1995 DD Form 214; and
   c.  the applicant's honorable active duty service in the RA during the period from 11 June 1997 through 24 March 1999 is documented on his 20 March 2004
DD Form 214.

   d.  Thus, records show the applicant's periods of honorable service are documented in his military records and, as he requests, he may use the aforementioned documents in support of his efforts to obtain veteran's benefits.

3.  The applicant's prior periods of honorable service, along with his awards and decorations, and his military training and experience, are acknowledged.

4.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by
court-martial was voluntary and administratively correct.  All requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.  The offenses that led to his discharge on
20 March 2004 far outweigh his overall record of service during the period of service under review.  Therefore, considering all the facts of the case, the applicant's characterization of service is appropriate and equitable.

5.  As a matter of information, the ABCMR does not upgrade an individual's discharge solely to enhance his or her eligibility for veteran's benefits.  Therefore, there is no basis for granting the applicant's requested relief.

6.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, 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.

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)                                         AR20100000853



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Procee