BOARD DATE:	  16 August 2011

		DOCKET NUMBER:  AR20110002574 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states that after participating in a year-long program at a Department of Veterans Affairs (VA) hospital and a positive change in his lifestyle, he is in a position to be hired by the hospital.  However, he requires an upgrade of his discharge in order to successfully compete for employment.

3.  The applicant provides a letter from his hospital supervisor in support of 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.  The applicant enlisted in the Regular Army for a period of 4 years on
13 August 1985.  Upon completion of training he was awarded military occupational specialty 19E (M48-M60 Armor Crewman).

3.  The applicant was awarded the Army Good Conduct Medal on 12 August 1988 and promoted to sergeant (SGT)/pay grade E-5 on 1 February 1989.

4.  On 26 June 1989, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully using cocaine between 15 and 25 May 1989.  His punishment consisted of reduction to pay grade E-4, a forfeiture of $483.00 pay for 2 months, and 45 days of restriction and extra duty.

5.  On 25 July 1989, the applicant's company commander preferred court-martial charges against him for violation of:

   a.  Article 134, UCMJ, for breaking restriction on 13 July 1989.

   b.  Article 123a, UCMJ, for making and issuing worthless checks of an aggregate amount of $734.95 between 24 June and 1 July 1989 (nine specifications).

6.  On 7 August 1989, the applicant consulted with legal counsel and voluntarily 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.  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  He acknowledged he was guilty of the charges against him or of lesser-included offenses contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

	a.  He was advised that he might be discharged under other than honorable conditions, that he might be deprived of many or all Army benefits, that he might be ineligible for many or all benefits administered by the VA, that he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he might expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Conditions Discharge Certificate.






	b.  He was advised that he could submit any statements he desired in his own behalf:

       (1)  The applicant indicated that he elected not to submit statements with his request.  However, he did submit a letter to his commander requesting leniency.

       (2)  The applicant stated that his problems began when he separated from his wife.  He began drinking heavily, experimented with cocaine, and grossly mismanaged his financial affairs.  He asked that his request for a discharge be processed quickly so that he could attempt to straighten out his life.

7.  The immediate and intermediate commanders recommended approval of the applicant's request for discharge with an under other than honorable conditions discharge.

8.  The separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, with a character of service of under other than honorable conditions.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 23 August 1989 in accordance with Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with service characterized as under other than honorable conditions.  He completed 4 years and 11 days of net active service.

10.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  In support of his request the applicant provides a letter from Mr. Stephen W. D-----, Logistics Supervisor, Harry S. Truman Veteran's Hospital, Columbia, MO. Mr. D---- states the applicant worked in the warehouse in March 2010 and was a valuable asset to him.  When Mr. D----- transferred to Medical Supply, he brought the applicant with him to work as a medical supply technician.  He adds the applicant is trustworthy and dependable, and he would welcome the opportunity to offer him full-time employment.

12.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 123a for making, drawing, or uttering a check, draft, or order without sufficient funds.  A punitive discharge is also authorized for offenses under Article 134 for breaking restriction.
13.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 provides that a member who 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.

	b.  Chapter 3, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded because he has made a positive change in his lifestyle and he is in a position to be hired by the veteran's hospital.

2.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Moreover, the offenses that led to his discharge outweigh his overall record.  Considering all the facts of the case, the characterization of service directed was appropriate and equitable.

3.  The applicant's military service records show the highest grade he attained was SGT (E-5) and he was awarded the Army Good Conduct Medal.  However, his records also show he received NJP for wrongfully using cocaine, and he was charged with breaking restriction and wrongfully and unlawfully issuing nine worthless checks in an aggregate amount of $734.95.  Thus, the applicant's overall quality of service during the period under review was not satisfactory and he is not entitled to a general discharge.

4.  The applicant's post-service conduct and employment was considered; however, it is not sufficiently mitigating to warrant relief.


5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for government employment or benefits. Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, the granting of veteran's preference or benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for veteran preference and benefits should be addressed to the VA.

6.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20110002574



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ABCMR Record of Proceedings (cont)                                         AR20110002574



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