IN THE CASE OF:	  

		BOARD DATE:	  16 September 2010

		DOCKET NUMBER:  AR20100009885 


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:

* he does not believe he was given a fair chance to defend himself on the charges he was facing
* he feels the Army could have done a better job of explaining what he was facing and the future effects of this type of administrative discharge

3.  The applicant provides:

* a Statement of Residency from the Steps House, Inc., dated 11 February 2010
* a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a letter from a Case Manager, Outreach Worker of the Volunteers of America, Tennessee, dated 11 February 2010

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 23 February 1978 for a period of 3 years.  He successfully completed basic combat and advanced individual training.  He was awarded military occupational specialty 11B (infantryman).

3.  On 13 April 1979, nonjudicial punishment was imposed against the applicant for destroying military property.  His punishment consisted of a reduction to private (PV1)/E-1, restriction, and extra duty.

4.  On 24 January 1980, charges were preferred against the applicant for two specifications of being absent without leave (AWOL) from 23 October 1979 to 
1 November 1979 and 15 November 1979 to 10 January 1980, and assault.  Trial by special court-martial was recommended.

5.  On 20 February 1980, subsequent to the applicant consulting with legal counsel, he requested 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.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an other than honorable conditions discharge, that he had been advised and understood the possible effects of an under other than honorable discharge, that as a result of the issuance of such a discharge he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He also acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf; however, his statement is not in the available records.

6.  On 7 March 1980, the separation authority approved the applicant's request for discharge and directed his separation with an under other than honorable conditions discharge.

7.  Accordingly, on 14 March 1980, 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 had served a total of 1 year, 9 months, and 26 days of creditable active service with 58 days of time lost.

8.  On 16 November 1981, the Army Discharge Review Board (ADRB) denied the applicant's request for an honorable discharge.

9.  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.

10.  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.

11.  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 contention he was not given a fair chance to defend himself on the charges he was facing related to evidentiary and legal matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, the applicant voluntarily requested discharge in lieu of trial by court-martial.  In submitting his request for discharge he was, in effect, admitting he was guilty of the charges.

2.  The applicant contends the Army could have done a better job explaining what he was facing and the effects of this type of discharge.  However, evidence of record shows he consulted with legal counsel on 20 February 1980 and in his request for discharge he acknowledged he had been advised and understood the possible effects of an under other than honorable discharge.

3.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

4.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's record of service included one nonjudicial punishment, serious offenses for which court-martial charges were preferred, and 58 days of time lost.  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.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable or 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)                                         AR20100009885



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ABCMR Record of Proceedings (cont)                                         AR20100009885



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