BOARD DATE:	  3 August 2010

		DOCKET NUMBER:  AR20100008118 


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

2.  The applicant states he was serving in the pay grade of E-6 and went on a mission to Arizona.  When he returned to Fort Campbell, Kentucky, after being gone 5 weeks, he and his men got in late and he told his three men to go home and he would cover for them.  He goes on to state that he got in trouble for that and was reduced to the pay grade of E-5.  He continues by stating that his commander kept him in the same unit and he got nothing but harassment from then on.  He continues that the regulations stated that as a noncommissioned officer (NCO) he should have been moved to another unit.  He also states that he was young and did not understand, but he would like his discharge upgraded and would like to serve again.

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 was born on 7 July 1961 and enlisted in the Regular Army on 4 January 1980 for a period of 3 years and training as a fire support specialist.  He completed his one-station unit training at Fort Sill, Oklahoma, and he remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-6 on 22 January 1985.

3.  On 9 June 1987, while stationed at Fort Campbell, nonjudicial punishment was imposed against him for being absent without leave (AWOL) from 24 to 27 May 1987.  His punishment consisted of a reduction to the pay grade of E-5 (suspended until 8 December 1987), a forfeiture of $110.00 pay per month for 2 months, and a forfeiture of $443.00 pay per month for 2 months (suspended until 8 December 1987.  He did not appeal his punishment.

4.  On 11 September 1987, the applicant failed to go to his place of duty and the imposing commander vacated the suspended punishments involving his reduction to the pay grade of E-5 and forfeiture of pay for 2 months.

5.  On 8 December 1987, charges were preferred against the applicant for being AWOL with intent to avoid field exercises from 2 November 1987 to 30 November 1987, for two specifications of disobeying lawful commands from two commissioned officers, and one specification of disobeying a lawful command from a superior NCO.

6.  On 16 December 1987, after consulting with counsel, the applicant submitted a request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  In his request he indicated that he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood that he could receive a discharge under other than honorable conditions and that he might be deprived of all benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.

7.  The appropriate authority (a major general) approved his request on 22 December 1987 and directed that he be discharged under other than honorable conditions.

8.  Accordingly, on 24 December 1987, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 7 years, 10 months, and 29 days of total active service and had 32 days of lost time due to AWOL.  He was 26 years of age at the time of his discharge.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against them or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and they must indicate that they have been briefed and understand the consequences of such a request as well as the discharge they might receive.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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.

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 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 was administratively correct and in conformance with applicable regulations.

2.  Accordingly, the type of discharge directed and the reasons were therefore appropriate under the circumstances.

3.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  He also admitted guilt to the charges against him.

4.  The applicant's contention that at the time he was young and did not understand has been noted and found to lack merit.  He was 26 years old and had attained the NCO ranks of sergeant and staff sergeant before his pattern of misconduct began.  There is no evidence to show that he could not distinguish right from wrong and he provided no extenuating circumstances when he was afforded the opportunity to do so.  Accordingly, there appears to be no basis to upgrade his discharge.

5.  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)                                         AR20100008118



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)