IN THE CASE OF:	  

		BOARD DATE:	  14 December 2010

		DOCKET NUMBER:  AR20100015628 


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 he knows the terms in which he left the Army were not commendable.  His reason would not excuse his actions.  He was young and irresponsible.  He fell in love with a woman whom he later married.  Since his discharge, he has been married to his wife, he has held a job for 21 years, and he has stayed clear of any legal issues.  He raised a successful family and he now desires to buy a home for his spouse.  He needs the upgrade so he may qualify for a Department of Veterans Affairs (VA) loan. 

3.  The applicant provides his D Form 214 (Certificate of Release or Discharge from Active Duty) and a Police Record.

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 was born on 10 June 1966 and he enlisted in the Regular Army on 20 August 1984 for a period of 3 years at 18 years of age.  He held military occupational specialty 76C (Equipment Records and Parts Specialist).  He attained the rank/grade of private first class (PFC)/E-3.

3.  His records also show he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Army Service Ribbon.

4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 25 October 1985, for wrongfully using marijuana
* 13 December 1985, for failing to go at the time prescribed to his appointed place of duty
* 24 June 1986, for being absent without leave (AWOL) from 3 to 18 June 1986

5.  From December 1985 to July 1986, he was reported in an AWOL status on three different occasions from:

* 6 December 1985 through 7 December 1985
* 3 June 1986 through 18 June 1986
* 6 July 1986 through 9 July 1986

6.  On 2 December 1986, he again departed AWOL and on 3 December 1986, he was dropped from the rolls (DFR) of the Army.  He ultimately surrendered to military authorities at Fort Bragg, NC, on 2 March 1987.

7.  On 5 March 1987, court-martial charges were preferred against him for one specification of being AWOL from 2 December 1986 to 2 March 1987.

8.  On 6 March 1987, he consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable under other than honorable conditions, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and 

of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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 court-martial.

9.  In his request for discharge, he indicated that he was making this request of his own free will and had not been subjected to any coercion whatsoever by any person.  He also indicated he understood that 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 discharge or a discharge under other honorable conditions.  He further acknowledged he understood that if the 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.  He also stated that under no circumstances did he desire further rehabilitation and that he had no desire to perform further military service.

10.  On 31 March 1987, his immediate and intermediate commanders recommended approval of the request for discharge with the issuance of an under other than honorable conditions discharge.  His immediate commander further remarked the applicant had no motivation for continued service and would not respond to either counseling or rehabilitation.

11.  On 3 April 1987, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, and directed he receive an under other than honorable conditions discharge and be reduced to the lowest enlisted grade.  On 5 May 1987, the applicant was discharged accordingly.

12.  The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of a court-martial, with a characterization of service of under other than honorable conditions.  This form further confirms he completed a total of 2 years, 4 months, and 27 days of creditable active service and he had 109 days of time lost.

13.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

14.  He submitted a copy of his police record that shows minor traffic violations. 

15.  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.

16.  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 under other than honorable conditions discharge should be upgraded to a general discharge was carefully considered and found to be without merit.

2.  His records show he was charged with the commission of offenses 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 court-martial.  He voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

3.  His records show he was 18 years of age at the time he enlisted, 19 years of age at the time he received his multiple NJPs, and 20 years of age at the time he went on an extended AWOL.  However, there is no evidence his pattern of misconduct was a result of his age or that he was any less mature than other Soldiers who successfully completed their service.

4.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable 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)                                         AR20100015628



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ABCMR Record of Proceedings (cont)                                         AR20100015628



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