BOARD DATE: 31 August 2010
DOCKET NUMBER: AR20100000940
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.
2. The applicant states he was told by a Judge Advocate General (JAG) representative that his discharge would change within 6 months of his release from the Army.
3. The applicant provides no additional documentation.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 16 November 2000, the applicant enlisted in the Regular Army for 4 years and he completed training as a petroleum supply specialist.
3. The evidence of record shows that charges were preferred against the applicant for four specifications of using a controlled substance and that after consulting with counsel, he submitted a request for 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.
4. An Acting Staff Judge Advocate's (SJA) memorandum, dated 9 October 2002, shows that the applicant's company commander, battalion commander, and brigade commander recommended approval of the request for discharge for the good of the service - in lieu of trial by court-martial, with the issuance of an under other than honorable conditions discharge.
5. The appropriate authority approved the request for discharge on 9 October 2002. Accordingly, on 18 October 2002, the applicant 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. He completed a total of 1 year, 11 months, and 3 days of active service.
6. The available records do not show that the applicant was ever advised by a JAG representative that his discharge would change within 6 months of his discharge.
7. On 21 May 2003, the Army Discharge Review Board (ADRB) denied the applicant's petition for an upgrade of his under other than honorable conditions discharge.
8. 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.
9. 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 have been considered and they are not substantiated by the evidence of record.
2. His records show he was charged with four specifications of using a controlled substance. He submitted a voluntary request for discharge for the good of the service - in lieu of trial by court-martial and his chain of command recommended approval with the issuance of an under other than honorable conditions discharge.
3. An Acting SJA also reviewed and recommended approval of the action that was subsequently approved by the appropriate authority. There is no evidence in the available record and the applicant has not submitted any evidence to show he was told his discharge would change within 6 months of his release from the Army. In addition, the U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
4. The type of discharge he received appropriately reflects is record of service. As a result, 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) AR20100000940
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
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