IN THE CASE OF:	  

		BOARD DATE:	  28 June 2011

		DOCKET NUMBER:  AR20100029893 


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.  The applicant states as a teenager he thought life was one great party.  He was suspended from school in twelfth grade and instead of going back to school he joined the Army.  Being in the Army did not last very long as he was still going down his own path.  After the Army he worked in construction, had his own business, and had a good reputation.  When he was in his late 30's he met the mother of his children, has not had one drink or cigarette since, has bought his own home, and received his general education diploma.  He is now going to school to train for another chapter in his life and would like his discharge upgraded so he is able to apply for jobs.

3.  The applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), a statement of support, and a letter.

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 records show he enlisted in the Regular Army on 2 November 1979 and he held military occupational specialty 76Y (Unit Supply Specialist).  He was assigned to Company D, 1st Battalion 11th Armored Cavalry Regiment, Germany.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* On 21 July 1980, for disobeying a lawful order and for being drunk and disorderly 
* On 4 December 1980, for disobeying a lawful order and dereliction of duty

4.  On an unspecified date, court-martial charges were preferred against him for an unknown offense.

5.  On 19 March 1981, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  In his request for discharge, he acknowledged he understood by requesting discharge if the discharge request was approved, he may be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and could be deprived of his rights and benefits as a veteran under both Federal and State laws and he could expect to encounter substantial prejudice in civilian life.

7.  On 7 April 1981, his immediate commander recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable 


Conditions Discharge Certificate.  On 17 April 1981, his senior commander recommended approval of the applicant's request for a discharge and stated he reviewed the applicant's personnel records and the charges against him and recommended he be issued an Under Other Than Honorable Conditions Discharge Certificate.  

8.  On 22 April 1981, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  

9.  On 1 June 1981, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged by reason of conduct triable by court-martial with a under conditions other than honorable characterization of service.  He completed 1 year and 7 months of creditable active service.

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

11.  The applicant provides a statement of support written by the grandmother of his children, undated, wherein she states the applicant has accomplished much and has grown into a man of whom she is proud.  She further states he is a good provider and a loving, nurturing father.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 provided that a member who had committed an offense or offenses for which the authorized punishment included 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.

13.  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.

14.  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 evidence of record shows the applicant was charged with the commission of an 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.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.

2.  His record of service shows he received NJP on two occasions for disobeying lawful orders, being drunk and disorderly, and for dereliction of duty.  Based on his record of misconduct, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

3.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for employment or other benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20100029893





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ABCMR Record of Proceedings (cont)                                         AR20100029893



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