IN THE CASE OF:	  

		BOARD DATE:	    12 October 2010

		DOCKET NUMBER:  AR20100011744 


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.

2.  The applicant states he does not feel that the incident he was involved in fits the ongoing punishment that he constantly lives with.  He admits he was drinking and that he did fire three rounds from his .38 caliber pistol; however, he contends he never shot at any sign or damage any property as stated.  He feels that some of the charges and statements were fabricated by the military police.

3.  The applicant provides copies of the following:

* his academic report cards for 2nd grade through high school
* performance counseling documents from his military service
* certificates of recognition
* his civilian resume, dated 22 January 2004
* a self-authored email message, dated 7 March 2010
* an email message from his pastor
* his DD Form 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 enlisted in the Regular Army on 12 April 1983 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 16 November 1985, nonjudicial punishment (NJP) was imposed against him for driving on a military installation with suspended driving privileges on or about 24 October 1985.

4.  His records reveal a bar to reenlistment was imposed against him on 2 October 1985.  A review to remove the bar was initiated on 19 February 1986; however, it was denied by his chain of command.

5. On 8 April 1986, NJP was imposed against him for wrongful use of a controlled substance (marijuana) on 19 February 1986.

6.  On 20 May 1986, the applicant voluntarily 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.  Prior to submitting his request, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of a discharge under other than honorable conditions, and of the procedures and rights that were available to him.  The applicant was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  The applicant indicated that he would submit a statement with his request.

7.  The applicant submitted a statement in which he expressed his opinion about spending 3 years of his life trying to conform to Army standards.  He stated that it was his sincere belief that he met the standard when it came to performing his duties and that his supervisors could attest to that fact.  He attributed his misconduct to involvement with drugs and alcohol.  He stated he was identified as having a dependency problem as early as 1983.  After the alleged incident took place, he was referred to the Alcohol and Drug Prevention and Control Program.  Due to a series of scheduling problems, he was not able to complete the program.  Later in 1985, he was again identified as having a dependency problem, but no additional treatment was prescribed.  He stated he was not blaming his chain of command for his problems because he accepted responsibility for his actions.  As a result, he requested the discharge so he could attempt to get his life back in order.

8.  In his voluntary request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request were 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 that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also elected not to undergo a separation medical examination.

9.  On 3 June 1986, the separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 13 June 1986, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate or Release or Discharge from Active Duty) issued to the applicant at the time of his discharge shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions characterization of service.  He completed 3 years, 2 months, and 2 days of total active service and 1 month and 1 day of prior inactive service.

11.  There is no indication in the applicant's record to show he applied to the Army Discharge Review Board for consideration of his case within that board's 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other Than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

13.  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.

14.  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 under other than honorable conditions should be upgraded was carefully considered; however, it was found not to be supported by the evidence provided.

2.  Based on the applicant's two counts of NJP, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  There is no evidence of an error or injustice on the part of the Army.  Therefore, the applicant is not entitled to an upgrade of his 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)                                         AR20100011744



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ABCMR Record of Proceedings (cont)                                         AR20100011744



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