IN THE CASE OF:	  

		BOARD DATE:	  8 March 2011

		DOCKET NUMBER:  AR20100023257 


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, that his under other than honorable conditions discharge be upgraded to general.

2.  The applicant states his discharge is inequitable because it was based on one isolated incident in 2 years, 6 months, and 7 days of military service.  He adds that he has been trying to get his discharge upgraded for a long time, but he was sent the wrong forms.  

3.  The applicant provides no additional documents in support of his application.

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 military personnel records show he enlisted in the Regular Army on 28 September 1976.  He completed the training requirements and he was awarded military occupational specialty 94B (Food Service Specialist).  The highest grade he attained was pay grade E-4. 

3.  On 10 January 1978, the applicant received nonjudicial punishment for two offenses of disobeying a lawful order.  His imposed punishment was a forfeiture of $107.00 pay, reduction to pay grade E-2 (suspended for 6 months), 7 days of restriction, and 14 days of extra duty.

4.  On 20 July 1979, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 2 March 1979 to 16 July 1979.  

5.  On 23 July 1979, after consulting with counsel, the applicant submitted a voluntary request for discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of court-martial.  In his request for discharge he indicated he was making the request of his own free will without coercion from anyone and that he was aware of the implications attached to his request.  He also admitted that he was guilty of the charges against him or of lesser included offenses which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood he could receive a discharge under other than honorable conditions and that he might be deprived of all or many benefits as a result of such a discharge.  He also elected not to submit a statement in his own behalf.  In addition, the applicant was advised he may expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Conditions Discharge Certificate.  

6.  On 2 August 1979, the appropriate authority approved the applicant's request for discharge for the good of the service, reduced the applicant to the lowest enlisted grade and directed that he be issued a discharge under other than honorable conditions.

7.  On 22 August 1979, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with a discharge under other than honorable conditions.  He had completed 2 years, 
6 months, and 7 days of net active service.

8.  There is no indication the applicant applied to the Army Discharge Review Board for an 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 3-7b, 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.  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 general because it was based on one isolated incident was carefully considered and found to be insufficient in merit.

2.  The applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in-lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable with a punitive discharge under the Uniform Code of Military Justice.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  

3.  Therefore, the type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.  The record contains no indication of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  In view of the above, there is no basis for granting his 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)                                         AR20100023257



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ABCMR Record of Proceedings (cont)                                         AR20100023257



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