IN THE CASE OF:	  

		BOARD DATE:	  14 September 2010

		DOCKET NUMBER:  AR20100010096 


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 was discriminated against, framed, and wrongly accused.

3.  The applicant provides no additional documentation in support of this application.

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  The American Legion, acting as the applicant's counsel, requests that they be appropriately informed of all actions taken in this case.

2.  Counsel states that following careful review of the evidentiary record, they opine that issues raised on the application amply advance the applicant's contentions and substantially reflect the probative facts needed for equitable review.  Accordingly, they rest the case on the evidence of record.

3.  Counsel provides no additional documentation in support of this application.

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 18 March 1980.  He completed his initial entry training and he was awarded military occupational specialty 64C (Motor Transport Operator).

3.  He accepted two nonjudicial punishments under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) as follows:

* 18 June 1980 for disobeying a lawful order from a commissioned officer
* 3 November 1980 for

* failing to go at the time prescribed to his appointed place of duty on
	16 October 1980
* two specifications of disobeying a lawful command from a
	commissioned officer on 15 June 1980 and 16 October 1980,
	respectively
* being disrespectful in language towards a noncommissioned officer on
	16 October 1980
* two specifications of dereliction in the performance of his duties on
	16 October 1980

4.  On 30 January 1981, he was convicted by a special court-martial for wrongfully having in his possession some amount of marijuana on 
17 November 1980.

5.  A DA Form 2823 (Sworn Statement) by Captain L---- W---- G----- on
2 October 1981 indicates that during a health and welfare inspection conducted on 25 September 1981, some amount of marijuana was found in the applicant's wall locker.

6.  A DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 6 October 1981, shows he was pending court-martial for possession of marijuana.

7.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  His record does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) which identifies the authority and reason for his separation.

8.  His DD Form 214 confirms he was discharged on 30 November 1981, in the rank/grade of private (PV1)/E-1.  It also shows he was discharged 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, with service characterized as under other than honorable conditions.

9.  The Army Discharge Review Board (ADRB) denied his request for an upgrade of his discharge on 19 April 1989.

10.  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.

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 contention that his discharge should be upgraded because he was wrongfully accused and because of discrimination has been carefully reviewed.

2.  The applicant's record is void of the facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.  Additionally, there is no evidence in the available records and he provided none to substantiate his claim that he was wrongfully accused or that he was a victim of discrimination.  

3.  His record of indiscipline includes two nonjudicial punishments and a prior court-martial conviction.  Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and does not support an upgrade of his discharge now.

4.  In view of the foregoing, 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)                                         AR20100010096



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ABCMR Record of Proceedings (cont)                                         AR20100010096



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