IN THE CASE OF:	  

		BOARD DATE:	  30 November 2010

		DOCKET NUMBER:  AR20100012103 


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 a general discharge.

2.  The applicant states that the incident which caused him to receive that discharge was beyond his intellectual ability, also around that time he was only 22 years old and did not realized the lasting impact his behavior would have on his life.

3.  The applicant provides one individual character statement, and two character reference statements.

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 record shows he enlisted in the Regular Army on
10 September 1979 for a period of 3 years.  He completed the required training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade he attained was private (PFC/E3).

3.  On 1 August 1977, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from his superior noncommissioned officer.  The punishment imposed was a forfeiture of $97.00 pay for 1 month (suspended for 90 days), and 7 days extra duty. 

4.  On 28 November 1977, the applicant received NJP for failing to go to his appointed place of duty.  The punishment imposed was a forfeiture of $92.00 pay for 1 month (suspended for 90 days), 7 days extra duty and 7 days restriction.

5.  On 12 January 1978, the applicant received NJP for failing to go to his appointed place of duty on 9 December 1977, 16 December 1977, 22 December 1977 and 24 December 1977 and for disobeying a lawful order your superior noncommissioned officer.  The punishment imposed was a forfeiture of $92.00 pay for 1 month, 7 days extra duty and 7 days restriction.

6.  On 29 November 1978, the applicant received NJP for on or about 7 October 1978, for the wrongful possession of another Soldier’s Meal Card and for failing to go to his appointed place of duty.  The punishment imposed was a forfeiture of 7 days pay ($113.00) (suspended for 30 days) and 10 days extra duty.

7.  On 14 June 1979, the applicant received NJP for failure to go at the prescribed time his appointed place of duty.  The punishment imposed was a forfeiture of 7 days pay ($109.00) reduction to Private/E2 and 7 days confinement.

8.  On 19 July 1979, court-martial charges were preferred against the applicant for failing to go to his appointed place of duty on 16 June 1979 and 9 July 1979, and for unlawfully carry a concealed weapon, to wit a .25 caliber pistol on or about 30 May 1979.

9.  On 13 August 1979, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written request for discharge for the good of the service under the provisions of chapter 10 of Army Regulation 635-200.  In his request for discharge, the applicant acknowledged that he understood by requesting 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 or dishonorable discharge.  He also acknowledged that he understood that if his 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 (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  

10.  On 23 August 1979, the Commanding General approved the request for discharge and directed that the applicant be issued a discharge under other than honorable conditions.

11.  On 4 September 1979, the applicant was discharged.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of court-martial with an under other than honorable conditions discharge.  The applicant completed a total of 2 years, 6 months, and 25 days of creditable active military service.

12.  Army Regulation 635-200 (Personnel Separations) 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.  An under other than honorable conditions discharge is normally considered appropriate.

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 (emphasis added), 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.

15.  On 23 June 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that the incident which caused him to receive that discharge was beyond his intellectual ability, also around that time he was only 22 years old and did not realized the lasting impact his behavior would have on his life, were carefully considered, however, records show that the applicant was 19 years old at the time of his entry into the military, and he was 22 years old at the time of discharge.  There is no evidence that indicates that the applicant was any less mature than other Soldiers who successfully completed military service and that applicant has not provided any evidence that shows the discharge he was issued was inequitable or unjust.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  His discharge under other than honorable conditions was administratively correct and in conformance with applicable regulations.  There is no indication that his request was made under coercion, duress, or that his rights were violated in any way.  Further, the applicant acknowledged in a signed statement that he understood if his request for discharge was approved, he could be deprived of many or all Army benefits administered by the VA and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also acknowledged he understood that he could encounter substantial prejudice in civilian if he were issued an under other than honorable conditions discharge.

3.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, the rights of the applicant were fully protected throughout the separation process, and his discharge accurately reflects his overall record of service.  Therefore, there is no basis for granting the applicant’s request.









BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  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.




      _______ _   _______   ___
               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)                                         AR20100012103



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ABCMR Record of Proceedings (cont)                                         AR20100012103



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