BOARD DATE:   17 May 2012

		DOCKET NUMBER:  AR20110021157


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 discharge.

2.  The applicant states that sufficient time has elapsed since he was separated from military service and he has rectified the conditions which led to his discharge.  

3.  The applicant provides no additional evidence 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 on 13 September 1976.  He completed training and was awarded military occupational specialty 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.

3.  His records show he accepted nonjudicial punishment (NJP), under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ), on four separate occasions:

* on 8 December 1978, for failing to go, at the prescribed time, to his appointed place of duty on or about 2 December 1978
* on 3 December 1980, for dereliction of duty on or about 20 November 1980
* on 7 May 1981, for disobeying the direct order of a superior noncommissioned officer (NCO) on or about 17 March 1981
* on 25 June 1981, for wrongful possession of marijuana on or about 1 June 1981

4.  On 9 July 1981, his immediate commander recommended his bar to reenlistment.  On 24 July 1981, his brigade commander approved his bar to reenlistment.  

5.  On 6 August 1981, court-martial charges were preferred against him for:

* a single specification of Charge I – violation of UCMJ, Article 90; specifically, disobeying the direct order of a superior NCO on or about    23 July 1981
* 2 specifications of Charge II – violation of UCMJ, Article 84; specifically, wrongful violation of a lawful general regulation on or about 23 July 1981
* a single specification of Charge III – violation of UCMJ, Article 134; specifically, wrongful possession of some amount of marijuana on or about 23 July 1981 

6.  His request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, is not available for review; however, on 24 August 1981 and 28 August 1981, his immediate and battalion commanders endorsed his discharge for the good of the service.  On  10 September 1981, his request for discharge in lieu of trial by court-martial was approved. 

7.  On 14 September 1981, he was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was credited with the completion of 5 years and 2 days of total active service.  His DD Form 214 further shows he was discharged in the rank/grade of private/E-1, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial, and he was issued an under other than honorable conditions discharge.  

8.  On 10 June 1988, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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.

10.  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.

11.  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 request for an upgrade of his under other than honorable conditions discharge has been carefully considered; however, there is insufficient evidence to support his request.

2.  His records show he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  While his request for discharge is unavailable for review, his record contains evidence of multiple instances of misconduct, including NJP and court-martial charges.  Additionally, his record contains a properly-constituted DD Form 214 that shows he was discharged on 14 September 1981, under the provisions of Army Regulation  635-200, chapter 10, in lieu of trial by court-martial.
3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, request a discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  

4.  It appears that his discharge accurately reflects his overall record of service.
His service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel, as evidenced by his record of indiscipline, including multiple instances of misconduct, including NJP and court-martial charges.  This misconduct also rendered his service unsatisfactory; therefore, he is not entitled to either a general or honorable 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)                                         AR20100014558



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ABCMR Record of Proceedings (cont)                                         AR20110021157



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