IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100017797 


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 has been out of the Army for 21 years and he feels his discharge should be upgraded.  All he did was get out of the Army for the good of the service.  He served for 12 years, attained the grade of E-6, and he received multiple awards.  He feels he should be awarded some type of benefits for being a veteran.

3.  The applicant did not provide any documentary evidence.

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 for a period of 4 years on 13 September 1977 and he held military occupational specialty 76Y (Unit Supply Specialist).  He executed a 3-year reenlistment on 18 June 1981 and a 5-year reenlistment on 10 September 1985.  He attained the rank/grade of staff sergeant (SSG)/E-6.

3.  His records show he served in Germany from October 1979 to August 1981 and September 1982 to October 1986.  He was awarded the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, Army Achievement Medal (1st Oak Leaf Cluster), Air Assault Badge, Overseas Service Ribbon, Army Good Conduct Medal (3rd Award), and Noncommissioned Officer (NCO) Professional Development Ribbon.

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

* On 7 October 1986, for willfully disobeying a lawful order from a superior commissioned officer
* On 16 June 1988, for dereliction of in the performance of his duties

5.  On 2 February 1989, court-martial charges were preferred against him for:

* Two specifications of failing to go at the time prescribed to his appointed place of duty
* Two specifications of disobeying lawful orders from superior NCOs
* One specification of being disrespectful to a superior NCO
* One specification of being disrespectful to a superior commissioned officer
* One specification of dereliction in the performance of his duties
* One specification of being drunk and disorderly
* One specification of communicating a threat to injure a superior officer

6.  On 2 February 1989, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or an under other than honorable conditions discharge, the maximum permissible punishment authorized under the UCMJ, of 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 trial by court-martial.


7.  In his request for discharge, the applicant indicated that 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 Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 6 February 1989, the applicant’s immediate, intermediate, and senior commanders recommended approval of the applicant’s separation with the issuance of an under other than honorable conditions discharge.  

9.  On 7 February 1989, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed that the applicant be reduced to the lowest enlisted grade and that he receive an under other than honorable conditions discharge.  On 10 February 1989, the applicant was discharged accordingly.  

10.  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, for the good of the service - in lieu of a court-martial, with a character of service of under other than honorable conditions.  This form further confirms he completed 11 years, 4 months, and 28 days of creditable active military service.

11.  On 6 June 2003, the Army Discharge Review Board determined his discharge was proper and equitable and denied his request for an upgrade. 

12.  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.



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.  It 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 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 trial by 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.

2.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also renders his service unsatisfactory.  Therefore, the applicant is not entitled to a general or an honorable discharge. 

3.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20100017797



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ABCMR Record of Proceedings (cont)                                         AR20100017797



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