IN THE CASE OF:	  

		BOARD DATE:	  22 July 2010

		DOCKET NUMBER:  AR20100000927 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states the following:

* he believes his discharge should be upgraded due to harsh treatment and hardship at the time of his separation
* his new company commander harassed a lot of Soldiers within his company 
* he received a summary court-martial for challenging and exhibiting rude gestures and he was found not guilty
* his company commander received a reprimand on his record for harassing him 
* he was intimidated by his company commander 
* he failed to go to company formation on one occasion because he was fearful of his company commander
* he was confined for being absent without leave (AWOL)
* his noncommissioned officers (NCOs) were coached by the company commander to falsify statements
* he chose to take a chapter 10 discharge and just separate himself from the Army 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 21 June 2000 for a period of three years.  His highest grade held was private first class (PFC)/E-3.  

3.  On 21 November 2001, the applicant was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order from an NCO, and treating an NCO with contempt by slamming the door in her face.  He was sentenced to hard labor without confinement for 45 days and restriction to specified limits for 2 months.

4.  The applicant’s discharge packet is not available for review.  His DD Form 214 shows he was discharged on 11 January 2002 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service – in lieu of court-martial with issuance of an under other than honorable conditions discharge.  He completed 1 year, 5 months, and 13 days of active service.  His DD Form 214 also shows periods of time lost from 28 November 2001 to 29 November 2001 and 3 December 2001 to 7 January 2002 (38 days).

5.  On 2 March 2005, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

6.  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.

7.  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.

8.  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 contentions that he believes his discharge should be upgraded due to harsh treatment and hardship he experienced at the time of his discharge are acknowledged.  However, the evidence of record does not support his claims.

2.  The applicant’s contentions regarding being harassed by his company commander are also acknowledged.  However, there is no evidence and the applicant has not provided sufficient evidence to support his claims.

3.  In the absence of the applicant's chapter 10 discharge proceedings, the applicant's voluntary 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, is presumed to have been administratively correct and in conformance with applicable regulations.

4.  Although the specific charges are not available, it is presumed the separation authority appropriately directed the issuance of an under other than honorable conditions discharge based on the applicant's overall record of service.

5.  The applicant's service record shows he was convicted by a summary court-martial for failing to go at the time prescribed to his appointed place of duty, disobeying a lawful order from an NCO, and treating an NCO with contempt by slamming the door in her face .  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 for an honorable discharge.

6.  The evidence of record does not indicate the actions taken in this case were in error or unjust.  Therefore, there is no basis for granting the applicant's request for an upgrade of his discharge to honorable.

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)                                         AR20100000927



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)