IN THE CASE OF:	  

		BOARD DATE:  26 April 2012

		DOCKET NUMBER:  AR20110020853 


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 an honorable or a general discharge.

2.  He states both his company and battalion commanders recommended a general discharge, but he received an under other than honorable conditions discharge.  He adds considering the recommendations of his chain of command, it is a clear injustice that their recommendations were not followed.  Additionally, he states he readily admitted to all his transgressions in his youth and during his time in service and now lives a productive life.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and the 1st and 2nd Endorsement of his "Request for Discharge for the Good of the Service," dated 14 September 1981.

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 28 October 1980.

3.  His disciplinary history includes his acceptance of nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice on:

* 18 May 1981, for wrongfully possessing some amount of marijuana on
11 May 1981
* 8 July 1981, for wrongfully possessing some amount and using marijuana on 29 June 1981

4.  On 21 July 1981, charges were preferred against him for:

* stealing two full 5 gallon gasoline cans, of a value of $42.00, the property of the U.S. Government on 3 July 1981
* unlawfully entering the post exchange, the property of the U.S. Government, with the intent to commit a criminal offense, larceny, on
3 July 1981
* attempting to unlawfully enter the post exchange with the intent to commit a criminal offense, larceny, on 3 July 1981
* attempting to steal items of "high value," the property of the U.S. Government, on 3 July 1981
* two specifications of failing to go at the time prescribed to his appointed place of duty on 15 and 16 July 1981

5.  On 9 September 1981, he consulted with counsel and he 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.

6.  In requesting a chapter 10 discharge, he acknowledged that he was making the request of his own free will, he was afforded the opportunity to speak with counsel, he understood he may be furnished a discharge under other than honorable conditions, he may be deprived of many or all Army benefits, he may be ineligible for many or all Veterans Administration benefits, and that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to submit a statement in his own behalf.

7.  In his statement, he stated he had been in the U.S. Army for about 11 months and during that time he had considerable problems adjusting to Army life.  He stated those problems resulted in a couple of Article 15's and numerous counseling statements.  He added he enjoyed training, but after arriving at his permanent duty station, he found his work was not as satisfying as he expected.  He stated the dissatisfaction caused him problems with the disciplinary aspects of the Army.  He concluded that he did not believe he had a very good future in the Army.

8.  On 14 September 1981, the company commander recommended approval of the applicant's request for discharge with a General Discharge Certificate.  He stated the applicant had two field grade Article 15's before this incident and that he had shown no signs of improvement.

9.  On 14 September 1981, the battalion commander also recommended approval of the applicant's request for discharge with a General Discharge Certificate.  He stated the applicant's charged offenses were sufficiently serious to warrant elimination from the service.  He added the applicant had no rehabilitation potential.

10.  On 14 September 1981, the appropriate authority approved the applicant's 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.

11.  On 18 September 1981, he was discharged accordingly.  His DD Form 214 shows he received an under other than honorable conditions discharge.  It also shows he completed 10 months and 21 days of creditable active service.

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

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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.  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.  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.

	c.  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 argues that it was a clear injustice to be issued an under other than honorable conditions discharge after his chain of command recommended him for a general discharge.  The approval authority is not bound by the recommendation of the applicant's chain of command.  Therefore, his contention that his discharge should be upgraded because his company and battalion commanders recommended issuance of a general discharge is not sufficient as a basis to justify upgrading his discharge.

2.  The evidence of record confirms that all requirements of law and regulation were met and his rights were fully protected throughout the separation process. The record further shows he voluntarily requested separation under the provisions of Army Regulation 635-200, chapter 10, to avoid trial by court-martial for his pending offenses.

3.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service as unsatisfactory.

4.  Additionally, the fact that he is now living a productive life is commendable; however, good post-service conduct alone is not a basis for upgrading his discharge.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's requested relief for either an honorable or a general 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)                                         AR20110020853



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ABCMR Record of Proceedings (cont)                                         AR20110020853



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