IN THE CASE OF:	  

		BOARD DATE:	  22 September 2011

		DOCKET NUMBER:  AR20110004806 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states his wife was addicted to narcotics and was arrested in their quarters.  He would also use the illicit drugs she would acquire, but he quit and tried to help her.  He was told if he did not give them the pusher's name he could be discharged or court-martialed.  He was young and foolish and at the time he felt his only option to save their future was to accept a discharge.  His wife later passed away.  He states it may not be unjust on the Army's part, but he honestly believes the situation was unjust and an error of the individuals involved. The sergeant and the military police thought they were doing the right thing in threatening him with the court-martial.  In the long run he wishes he had faced the court-marital, if it had been conducted.  He states he has been a role model to his children and grandchildren and also to other young children in his community.  He is no longer young and foolish.  The military taught him dignity, respect, and responsibility.

3.  The applicant provides four personal references.

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.  He enlisted in the Regular Army on 25 May 1976, at the age of 21 years, for a period of 3 years.  He reenlisted on 15 December 1978 and on 27 June 1985.  He was awarded military occupational specialty 24J (Improved Hawk Pulse Radar Repair).

3.  On 27 June 1985, he was promoted to staff sergeant/pay grade E-6.

4.  His records contain a DA Form 2166-6 (Enlisted Evaluation Report) for the period from February 1986 to January 1987.  His principal duty title was instructor.  His rater stated his performance as a noncommissioned officer was failing in regards to his ability to display sound judgment.  He had financial trouble that caused some problems and he had a positive urinalysis test which severely damaged his integrity and was a poor example of self-discipline.

5.  On 19 March 1987, the applicant was discharged under the provisions of 
Chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service with service characterized as under other than honorable conditions.  He had completed a total of 10 years, 9 months, and 25 days of active service.

6.  His separation processing package was not available for review.
The facts and circumstances pertaining to the applicant’s discharge are also not available.

7.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

8.  He submitted four personal references.

	a.  The former mayor of Canton, MS stated, after having known him for 
16 years, he had been a good citizen, very patriotic, and a good community minded person.  He highly recommended him for any position where trust and integrity is needed.

	b.  The Chairman of the Deacon Board at Sweet Caanan M.B. Church stated, after having known him for 7 years, he found him to be a good spiritual leader, an upright citizen, and a good community leader.

	c.  The Area manager for AT&T stated he had been employed with AT&T since 15 May 1998.  He stated he is dependable and always willing to do whatever it takes to get the job done.  He is extremely personable and an honest man for whom he has a great deal of respect.

	d.  The Chairman of the Deacon Board at Mary Madgalene M.B. Church stated, after having known him for 14 years, he found him to be a spiritual good leader, an upright citizen, and a good community leader who is very dedicated with kids in the church and the community.

9.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative 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 could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

10.  Army Regulation 635-200 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 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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  Although he contends he was young and foolish, he was 21 years of age at the time of his initial enlistment and 31 years of age with over 10 years of active service at the time of his discharge.  Many Soldiers were enlisted at a younger age and went on to complete their enlistments and receive honorable discharges. Therefore, the age of the applicant was not considered a mitigating factor in this case.

2.  He had been promoted to staff sergeant, a position of authority and responsibility.  In addition, he was assigned as an instructor wherein he was in a special position of trust and responsibility, and he was responsible for the welfare of those trainees who looked to him for guidance and were still new to the Army.  The applicant violated this special trust and confidence.  

3.  Although his separation package was not available for review by this Board, in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  He would have been required to consult with defense counsel and to have voluntarily and in writing requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offenses he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

4.  Although his separation packet was not available, it is presumed that the Army's administrative processing of him for discharge was correct.  He has the burden of proving an error or injustice occurred by a preponderance of the evidence.

5.  In the absence of evidence to the contrary, it is determined that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.  Further, it is determined that the type of discharge and the reason for separation were appropriate considering all the known facts of the case.

6.  His post service achievements and conduct are noted.  However, good post service conduct alone is not normally sufficient for upgrading a properly issued discharge and the ABCMR does not upgrade discharges based solely on the passage of time.
7.  He has not provided sufficient evidence to support changing the character of his service to that of honorable or general under honorable conditions.

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)                                         AR20110004806



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ABCMR Record of Proceedings (cont)                                         AR20110004806



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