IN THE CASE OF:	

		BOARD DATE:	  19 October 2011

		DOCKET NUMBER:  AR20110009183 


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 that his discharge under other than honorable conditions be upgraded to a fully honorable discharge.

2.  The applicant states that he was offered a discharge under other than honorable conditions with the understanding that it would be upgraded to a fully honorable discharge after 2 years, provided he maintained a clean record.  He goes on to state that prior to his discharge he was informed that his father was diagnosed with cancer in its worst stage.  He continues by stating that he did not know how to deal with his father’s illness and became depressed and attempted suicide.  Additionally, he did not receive counseling or know how to ask for it.  He further states that although he made mistakes in the past he is currently on the road to becoming a positive citizen in society.  He is currently attending college, anger management, outpatient drug counseling, one-on-one therapy, and Narcotics Anonymous.

3.  The applicant provides copies of a DD Form 214 (Certificate of Release or Discharge from Active Duty), State of Michigan Identification Card, Social Security Card, six third-party statements of support, five documents related to courses he completed or enrolled in, police records check, and a one-page letter explaining 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 enlisted in the Regular Army on 3 January 1985 for a period of 3 years and training as a materiel storage and handling specialist.  He completed basic training at Fort Leonard Wood, Missouri, advanced individual training at Fort Lee, Virginia, and his airborne training at Fort Benning, Georgia before being transferred to Fort Bragg, North Carolina for his first and only duty assignment. 

3.  On 23 January 1986, the applicant’s commander initiated action to bar the applicant from reenlistment.  He cited as the basis for his recommendation numerous instances of being disrespectful towards individuals in authority, disobeying lawful orders, failure to go to his place of duty, a poor attitude, poor duty performance, inability to follow instructions, public profanity, and resisting arrest by civil authorities.  The appropriate authority approved the bar.

4.  On 17 March 1986, he was convicted by a summary court-martial of disobeying a lawful order and dereliction of duty.

5.  The applicant went absent without leave (AWOL) from 22 April to 28 April 1986 and 12 May to 13 May 1986.  The record is silent as to any punishment imposed for those absences.

6.  The complete facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records. However, the available records show that charges were preferred against the applicant for striking a warrant officer.

7.  On 15 July 1986, after consulting with defense counsel, the applicant submitted a request for 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.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of 

the implications attached to his request.  He also admitted he was guilty of the charge against him or of lesser-included offense(s) which authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further declined to submit a statement or explanation in his own behalf.  However, his defense counselor indicated that the applicant’s hometown pastor stated that he would house the applicant and see that he received the counseling and treatment that he needed as well as employment.

8.  The appropriate authority (a brigadier general) approved his request for discharge with the issuance of an under other than honorable conditions discharge.

9.  Accordingly, he was discharged under other than honorable conditions on 1 August 1986, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 6 months, and 23 days of active service.

10.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

12.  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.

13.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service, to avoid a punitive discharge which may have resulted in a felony conviction on his record.  In doing so he admitted guilt to the charge against him.

3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances, especially given the seriousness of his offenses, his repeated misconduct, and his undistinguished record of service.  His service simply did not rise to the level of an honorable or a general discharge.

4.  Accordingly, there appears to be no basis to grant the applicant’s request for an upgrade of his 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)                                         AR20110009183



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ABCMR Record of Proceedings (cont)                                         AR20110009183



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