IN THE CASE OF:	  

		BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100021563 


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, in effect, his discharge under other than honorable conditions be upgraded. 

2.  The applicant states:

* He was not properly represented by the Judge Advocate General (JAG) officer
* He was brought a bunch of papers by his commanding officer and he signed them not knowing he would be stripped of his rank and kicked out of the military
* He wasn't offered any type of drug counseling
* He feels he was taken advantage of by officers who knew more about the Army legal system than he did
* He is now a full-time student with high hopes of becoming an engineer
* His discharge will affect his employment status

3.  The applicant provides:

* College transcript
* Upcoming class schedule





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 enlisted in the Regular Army on 11 June 1981 and trained as a tactical communications chief and infantryman.  He remained on active duty through continuous reenlistments.

3.  On 25 May 1989, nonjudicial punishment (NJP) was imposed against the applicant for being derelict in the performance of his duties and using cocaine. 

4.  On 20 June 1989, charges were preferred against the applicant for two specifications of being absent without leave (AWOL) from 2 June to 3 June 1989 and from 12 June to 14 June 1989; 10 specifications of uttering worthless checks; and breaking restriction.  Trial by special court-martial was recommended. 

5.  On 6 July 1989, the applicant consulted with counsel and requested discharge for the good of the service 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.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected not to make a statement in his own behalf.  

6.  On 14 July 1989, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

7.  He was discharged under other than honorable conditions on 20 July 1989 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served a total of 8 years and 
1 month of creditable active service with 10 days of lost time.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

9.  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.

10.  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.

11.  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.  He contends he was not properly represented by JAG and that he signed a bunch of papers not knowing he would be stripped of his rank and kicked out of the military.  The evidence of record shows he consulted with counsel on 6 July 1989 prior to making his voluntary request for discharge in lieu of trial by court-martial.  He provides no evidence to show he was improperly counseled.  In addition, he indicated in his request that he understood he might be discharged under conditions other than honorable.  

2.  His contention he was not offered any type of drug counseling does not justify the misconduct for which he was convicted.  Also, there is no evidence he took steps to self-refer for drug abuse treatment while in the Army.

3.  Discharges are not upgraded for the purpose of enhancing employment opportunities.

4.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement in which he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

6.  His record of service included one NJP, serious offenses for which special court-martial charges were preferred, and 10 days of lost time.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, the applicant's record of service is insufficiently meritorious to warrant an honorable discharge 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)                                         AR20100021563



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ABCMR Record of Proceedings (cont)                                         AR20100021563



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