BOARD DATE:	  12 August 2010

		DOCKET NUMBER:  AR20100008916 


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

2.  The applicant states his discharge was inequitable because it was based on one isolated incident in 34 months of service.  He served honorably in the Massachusetts (MAARNG), South Carolina (SCARNG), and Alabama Army National Guard (ALARNG), U.S. Army Reserve (USAR), and in Grenada.  Additionally, he reiterates that he attempted to resolve his issue through the chain of command at the time to no avail.  

3.  The applicant provides the following documents:

* An Honorable Discharge Certificate from the MAARNG
* An Honorable Discharge Certificate from the SCARNG
* Two diplomas
* Two certificates of training
* Two DD Forms 214 (Certificate of Release or Discharge from Active Duty)
* National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service)
* USAR discharge orders
* DA Form 2-1 (Personnel Qualification Record)
* Self-authored statement 



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 MAARNG on or about 11 October 1980.  He subsequently entered active duty for training (ADT) on 14 January 1981, completed the Radio Operator Course at Fort Gordon, GA, and he was awarded military occupational specialty (MOS) 05B (Radio Operator).  He was released from ADT on 16 April 1981 to the control of his ARNG unit.  

3.  After his honorable discharge from the MAARNG on 17 May 1981 and his service in the SCARNG and subsequent honorable discharge from the SCARNG, he enlisted in the ALARNG on 25 September 1982.  He held MOS 64C (Motor Transport Operator) and he was honorably discharged from the ALARNG on 
17 August 1984.

4.  He enlisted in the Regular Army for a period of 3 years on 29 December 1983 and held MOS 94B (Food Service Specialist).  He was promoted through the ranks to specialist four/E-4. 

5.  His records also show he served in Germany from 23 July 1985 to 2 October 1986.  He was awarded the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar.

6.  On 18 February 1986, he accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana.  His punishment consisted of a reduction to private (PVT)/E-1 (suspended), a forfeiture of $200.00 pay for 2 months, 45 days of restriction (suspended) and 45 days of extra duty.


7.  On 20 June 1986, the suspended portions of the above punishment were vacated after the applicant disobeyed a lawful order by having alcoholic beverages in the field.

8.  On 27 June 1986, he departed his unit in an absent without leave (AWOL) status and he was subsequently dropped from the Army rolls on 17 July 1986.  He ultimately returned to military control on 18 August 1986.

9.  On 19 August 1986, court-martial charges were preferred against him for the above period of AWOL.

10.  On 3 September 1986, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial for an offense punishable 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 requested discharge for the good of the service in lieu of trial by court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations).

11.  In his request for discharge, he acknowledged he understood by requesting a 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 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, and he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also stated that under no circumstances did he desire further rehabilitation or to perform further military service.

12.  He also submitted a personal statement wherein he stated that he had problems with his wife and his unit.  He was dissatisfied with health violations in the mess hall and his wife had left him.  He began drinking and felt there was nothing he could do so he went AWOL.

13.  On 8 and 9 September 1986, his immediate, intermediate, and senior commanders recommended approval of his request for discharge with the issuance of an under other than honorable conditions discharge.



14.  On 12 September 1986, 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 that he be issued an under other than honorable conditions discharge and that he be reduced to the lowest enlisted grade.  On 3 October 1986, he was discharged accordingly.  

15.  The DD Form 214 he was issued shows he was discharged for the good of the service in lieu of a court-martial with a characterization of service of under other than honorable conditions.  This form further confirms he completed a total of 2 years, 10 months, and 16 days of creditable active service and he had 52 days of lost time.  

16.  On 25 February 1988, the Army Discharge Review Board denied his request for an upgrade of his discharge.

17.  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.

18.  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 contends his discharge should be upgraded.

2.  The applicant's ARNG service was considered.  However, contrary to his argument that his discharge was inequitable because it was based on one isolated incident in 34 months of service, his record revealed that in addition to his period of AWOL, NJP was taken against him for wrongful use of marijuana and the suspended portion of that punishment was vacated after he wrongfully used alcohol in a field environment.  

3.  Additionally, there is no evidence in the available records and he did not provide any substantiating evidence that shows he had domestic problems or that he addressed such issues with his chain of command and/or support channels. 

4.  The applicant was charged due to commission of an offense punishable under the UCMJ with a punitive discharge.  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.

5.  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)                                         AR20100008916



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)