BOARD DATE:	  24 February 2011

		DOCKET NUMBER:  AR20100021502 


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 he is trying to get medical benefits through the Department of Veterans Affairs (VA) and he was unaware that the character of his service would affect his future endeavors.

3.  The applicant provides no additional documents with his request. 

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.  After serving in the New Jersey Army National Guard, the applicant enlisted in the Regular Army on 29 November 1993 for a period of 3 years as a unit supply specialist and assignment to Europe.  He was transferred to Germany on 12 December 1993.

3.  He completed his tour in Germany and he was transferred to Fort Sill, OK on 20 September 1995. 

4.  On 29 March 1996, while serving in the pay grade of E-4, he reenlisted for a period of 4 years and assignment to Alaska.  He was transferred to an infantry company at Fort Wainwright, AK on 2 October 1996. 

5.  On 6 August 1997, nonjudicial punishment (NJP) was imposed against him under Article 15, Uniform Code of Military Justice (UCMJ) for wrongfully using marijuana and failing to obey a lawful order from a lieutenant colonel.  

6.  On 15 May 1998, NJP was imposed against him for two specifications of failing to go at the time prescribed to his appointed place of duty.

7.  On 4 August 1998, NJP was imposed against the applicant for being disrespectful in language towards a superior noncommissioned officer (NCO) and for disobeying a lawful order from a superior NCO. 

8.  The available records show that on 5 January 1999, the applicant’s commander notified the applicant that he was initiating action to discharge him from the service under the provisions of Army Regulation 635-200, chapter 14, for misconduct.  On 22 January 1999, the separation authority directed that an administrative separation board be convened.

9.  However, the evidence of record shows that 8 months later he was discharged under the provisions of Army regulation 635-200, chapter 10, in lieu of trial by court-martial.

10.  The facts and circumstances surrounding his administrative discharge are not present in the available records.  However, his record contains a duly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) signed by the applicant that shows on 20 August 1999, 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.  He had served 6 years, 1 month, and 9 days of total active service.


11.  The applicant applied to the Army Discharge Review Board (ADRB) on 13 September 2000 for an upgrade of his discharge.  After considering all of the available evidence in his case the ADRB determined that his discharge was both proper and equitable under the circumstances and voted to deny his request on 29 November 2000. 

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.  

13.  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 record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.

2.  Accordingly, it appears that the type of discharge directed and the reasons therefore were appropriate under the circumstances.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the nature of his discharge, his overall record of service, and the absence of mitigating circumstances.  Additionally, the Board does upgrade discharge simply for the purpose of qualifying individuals for benefits and his service simply does not rise to the level of a general discharge.

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.
 
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)                                         AR20100021502



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ABCMR Record of Proceedings (cont)                                         AR20100021502



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