IN THE CASE OF:	  

		BOARD DATE:	    14 October 2010

		DOCKET NUMBER:  AR20100010138 


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

2.  He states he would like his discharge upgraded so he can reenlist.  At the time of his discharge he was issued a DD Form 214 (Certificate of Release or Discharge from Active Duty) showing his character of service as under honorable conditions.  The National Personnel Records Center, St. Louis, MO, issued him a DD Form 214 showing his character of service as under other than honorable conditions.  He requests his DD Form 214 show the character of service he was discharged with.

3.  He provides copies of the two DD Forms 214.

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 military records show he enlisted in the Regular Army in pay grade E-1 on 12 August 1987.  He completed training and was awarded military occupational specialty 82C (Field Artillery Surveyor).  He was advanced to pay grade E-2 on 12 February 1988.  

3.  On 1 March 1989, he was punished under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 7 February 1989.  

4.  His records contain a DD Form 458 (Charge Sheet), dated 8 May 1989, prepared by the Commander, Headquarters and Headquarters Service Battery, 6th Battalion, 8th Field Artillery.  He was charged with one specification of being absent without leave (AWOL) from 3 April to 1 May 1989 and two specifications of uttering dishonorable checks on 25 February and 12 March 1989.  

5.  On 23 May 1989, the charges were referred to a summary court-martial.

6.  On 16 June 1989, after consulting with counsel, he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service in lieu of court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

7.  On 21 June 1989, his unit commander recommended approval of his request and the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

8.  On 21 June 1989, the appropriate separation authority approved his request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He was accordingly discharged on 12 July 1989.  His DD Form 214 shows he was discharged in pay grade E-1 on 12 July 1989, under the 


provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial with a character of service as under other than honorable conditions.  He was credited with completion of 1 year, 8 months, and 8 days of net active service.  He was also credited with lost time from 3 April to 30 June 1989.  His signature is annotated in Item 21 (Signature of Member Being Separation) of the DD Form214.

9.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  He provided copies of two DD Forms 214, one shows he was discharged on 12 July 1987, at the expiration of his term of service, with a general discharge.  No lost time is listed on this DD Form 214 and the separation authority is incomplete.  The other DD Form 214 shows he was discharged 12 July 1987 under the authority of chapter 10, for the good of the service in lieu of court-martial.  He was credited with lost time and his service was characterized as under other than honorable conditions.  

11.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation specified a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions discharge was normally considered appropriate.

12.  Army Regulation 635-200, paragraph 3-7b, specified a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contention has been noted.  However, he was charged with being AWOL and uttering dishonorable checks.  After consulting with counsel, he voluntarily 

requested a discharge and in doing so he admitted guilt to the stipulated offenses.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  He also acknowledged he understood he could be issued an Under Other Than Honorable Conditions Discharge Certificate.

3.  One of the DD Forms 214 he provided shows his character of service as under honorable conditions (general) and the other shows his character of service as under other than honorable conditions, with no lost time listed.  It is noted this DD Form 214 showing his character of service as under honorable conditions also shows the narrative reason for separation as expiration term of service.  The other DD Form 214, his military records, and original DD Form 214 confirm he was discharged on 12 July 1989 for the good of the service in lieu of court-martial and his service was characterized as under other honorable conditions, and was AWOL from 3 April to 1 May 1989.

4.  He has provided insufficient evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting an upgraded discharge.

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

6.  His desire to have his discharge upgraded so that he can reenlist is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for reenlistment.

7.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100010138



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ABCMR Record of Proceedings (cont)                                         AR20100010138


   
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