IN THE CASE OF:	  

		BOARD DATE:	    4 May 2011

		DOCKET NUMBER:  AR20100025799 


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.  He states he is now having problems with his disability caused by service and he is not eligible to receive care at the Department of Veterans Affairs (VA) hospitals because of his character of service.

3.  He provides no additional 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 enlisted in the Regular Army on 5 February 1986 in pay grade E-1 for a period of for 3 years.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He was advanced to pay grade E-2 on 5 August 1986.

3.  A DD Form 458 (Charge Sheet), dated 17 December 1987, was prepared by the Commander, Company B, 2nd Battalion, 502nd Infantry Regiment, 101st Airborne Division, Fort Campbell, KY.  The applicant was charged with the following offenses that occurred on 23 September 1987:

* one specification of pushing a noncommissioned officer (NCO) against a wall and striking him repeatedly on the head and upper body with his fists
* one specification of willfully disobeying a lawful order from an NCO
* one specification of being disrespectful in language and deportment towards an NCO
* two specifications of being disrespectful in language and deportment towards an NCO

4.  On 17 and 18 December 1987 respectively, the applicant's company and battalion commanders recommended the applicant be tried by a special court-martial empowered to adjudge a bad conduct discharge.

5.  On 8 January 1988, after consulting with counsel, the applicant voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), chapter 10, for the good of the service - in lieu of trial by court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He also acknowledged he could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and he could be ineligible for many or all benefits administered by the VA.  He waived his rights and elected not to submit a statement in his own behalf.

6.  On 27 January 1988, the appropriate separation authority approved his request and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private (PV1)/E-1.

7.  He was accordingly discharged on 2 February 1988 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He completed 1 year, 11 months, and 28 days of creditable active service with no time lost.
8.  There is no indication he 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 was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  The applicant's contention has been noted; however, the evidence of record shows he was charged with four serious offenses.  His company and battalion commanders recommended his trial by court-martial empowered to adjudge a bad conduct discharge.  After consulting with counsel, he voluntarily requested a discharge and in doing so he admitted guilt to the stipulated offenses.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged or that he was being treated unfairly.  He also acknowledged he understood he could be issued an Under Other Than Honorable Conditions Discharge Certificate and could be ineligible for many or all benefits administered by the VA.

3.  He has provided insufficient evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would warrant an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

5.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by the VA is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits administered by the VA.

6.  In view of the foregoing, there is no basis for granting his request.

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)                                         AR20100025799



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ABCMR Record of Proceedings (cont)                                         AR20100025799



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