IN THE CASE OF:	  

		BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100013165 


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 an upgrade of his under other than honorable conditions discharge to an honorable discharge. 

2.  The applicant states he believes he served his country honorably.  He is now diagnosed as having a bipolar disorder and he is homeless.  He needs help.

3.  The applicant did not provide any additional documents. 

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 records show he enlisted in the Regular Army on 28 March 1983.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 92B (Medical Laboratory Specialist).  He also executed a 4-year reenlistment on 15 October 1985 and a 3-year reenlistment on 7 January 1991.  The highest rank/grade he attained during his military service was sergeant (SGT)/E-5.

3.  His records further show he served in Germany from October 1983 to April 1985 and March 1992 to April 1993.  He was awarded the Army Commendation Medal, Army Good Conduct Medal (2nd Award), Noncommissioned Officer Professional Development Ribbon, Army Service Ribbon, Overseas Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle and Grenade Bars.

4.  The complete facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains the following documents:

	a.  An Optional Form 271 (Conversation Record), dated 19 April 1993, wherein the author indicated that Brigadier General E--- K. S------, Commanding General, 4th Infantry Division, approved the applicant's discharge under the provisions of Army Regulation 635-200 (Personnel Separation - Enlisted Personnel), chapter 10, with an under other than honorable conditions character of service.

	b.  Orders 109-027, issued by Headquarters, U.S. Army, Fort Dix, NJ, discharging the applicant from the Army under the provisions of Army Regulation 635-200, chapter 10, effective 19 April 1993.

	c.  A letter of debarment, dated 19 April 1993, that states, having been discharged from the Army on 19 April 1993 under the provisions of Army Regulation 635-200 with an under other than honorable conditions discharge issued at Fort Dix, he was ordered not to reenter or be found within the limits of Fort Dix.

	d.  A properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 19 April 1993, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with service characterized as under other than honorable conditions.  He completed a total of 10 years and 22 days of total active service.

5.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

6.  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, an under other than honorable conditions discharge is normally considered appropriate.

7.  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.

8.  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 contends his under other than honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 19 April 1993 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial.

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed his discharge accurately reflects his overall record of service during his last enlistment. 

4.  In view of the foregoing, there is no basis for granting the applicant's requested relief.  Therefore, he is not entitled to either 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)                                         AR20100013165



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ABCMR Record of Proceedings (cont)                                         AR20100013165



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