IN THE CASE OF:	  

		BOARD DATE:	  22 February 2011

		DOCKET NUMBER:  AR20100020551 


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 his Under Other Than Honorable Conditions Discharge be upgraded to an Honorable Discharge.

2.  He states he made restitution of his financial obligations and was never convicted of any crime.  He contends that during his entire enlistment, he was a dedicated Soldier.  

3.  He provided a certified copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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.  His record shows he enlisted in the Regular Army on 8 November 1984.  After completion of basic combat and advanced individual training, he served in military occupational specialty 76Y (Unit Supply Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows the following entries:

* Item 5 (Oversea Service) – he served in Alaska from 6 April 1985 until he separated from the Army 
* Item 9 (Awards, Decorations and Campaigns) – does not record any special recognitions, acts of valor or campaign credit
* Item 18 (Appointments and Reductions) – shows he was appointed to the grade of Private First Class/E-3 on 8 November 1985
* Item 35 (Record of Assignments) – he was assigned to the 23rd Engineer Company during his tour at Fort Richardson, AK 

4.  His record contains a DD Form 458 (Charge Sheet), dated 24 August 1987.  This form shows the following charges under the Uniform Code of Military Justice (UCMJ) were preferred against him:

	a.  Charge I:  Violation of Article 90 for willfully disobeying a lawful order from a superior commissioned officer to remain in the company area for 45 days; 

	b.  Charge II:  Violation of Article 86 for going absent without leave (AWOL) from 14 to 23 August 1987; and

	c.  Charge III:  Violation of Article 123a by intentionally writing checks against insufficient funds for the procurement of money and items from the Post Exchange.  

5.  On 31 August 1987, he voluntarily submitted a request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10.  Prior to completing his request, he consulted with his appointed attorney, who advised him of his rights.  The applicant noted:

   a.  He was making the request of his own free will and had not been subjected to coercion whatsoever by any person;
   
   b.  He had been advised of the implications that were attached to his request and that by submitting his request, he acknowledged that he was guilty of the charge against him or of a lesser or included offense that allowed the imposition of a bad conduct or a dishonorable discharge;
   
   c.  He did not desire further rehabilitation or to continue service in the military;
   
   d.  He understood that if his request were accepted, he could be discharged under conditions other than honorable and understood the effects of an under other than honorable discharge;
   
   e.  He also understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including many or all benefits administered by the Veterans Administration;
   
   f.  He understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge;
   
   g.  He understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and
   
   h.  He was advised he could submit any statements he desired to accompany his request for discharge; however, he did not submit any. 
   
6.  The applicant's immediate commander endorsed his request for discharge and stated the request should be denied.  He contended that it was in the best interest of the Army to proceed with the applicant’s court-martial due to the applicant presenting bad checks to an outside retailer as well as to the Post Exchange.  He recommended the applicant be given a Bad Conduct Discharge (BCD). 

7.  A copy of the endorsement from his battalion commander shows he also recommended the applicant’s request for discharge in lieu of trial by court-martial be disapproved and he be given a BCD.  He noted that in addition to the charges that were preferred against the applicant, he also received nonjudicial punishment (NJP) under Article 15 of the UCMJ on six separate occasions.  

8.  On 14 October 1987, the Acting Division Commander approved the applicant's request for discharge in lieu of trial by court martial.  He directed the applicant's service be characterized as under other than honorable conditions. 

9.  Accordingly, he was discharged under the provisions of Army Regulation  635-200, chapter 10, in lieu of trial by court-martial, with an "Under Other than Honorable Conditions Discharge," in the rank and pay grade of Private, E-1, on 19 October 1987.  He had completed 2 years, 10 months, and 28 days of active service, and 5 months and 14 days of prior inactive service.  He had 17 days of lost time due to AWOL. 
10.  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. 

11.  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, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper.

12.  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.  

13.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  His request to upgrade his Under Other Than Honorable Conditions Discharge to an Honorable Discharge was carefully considered. 

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows he was charged with three violations under the UCMJ and received NJP on six separate occasions.  

3.  He voluntarily submitted a request for discharge for the good of the service - in lieu of trial by court-martial.  The Acting Division Commander supported his request and accordingly, he was discharged.

4.  The evidence shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel, and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.  

5.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.

6.  In view of the foregoing, there is no basis that would warrant upgrading his discharge to either honorable or general under honorable conditions. 

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)                                         AR20100020551





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ABCMR Record of Proceedings (cont)                                         AR20100020551



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