IN THE CASE OF:	  

		BOARD DATE:	  24 October 2013

		DOCKET NUMBER:  AR20130002942 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states his character of service in item 24 (Character of Service) of his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 2 March 1988 contradicts item 13 (Decorations, Medals, Badges, Citations and Campaign Ribbons Awarded or Authorized).  His decorations and awards do not support the character of service.  His service in the U.S. Army Reserve (USAR) is shown in item 12e (Total Prior Inactive Service) of his
DD Form 214.  He was honorably discharged from the USAR in April 1983 and he received an honorable discharge in March 1986.

3.  He further states:

* he was young and having an affair
* when he tried to end the affair, the woman came to his quarters and kept ringing his door bell and running away
* he busted her windshield and his wife beat the other woman
* the sergeant major told him to pay for the other woman's windshield and he would take care of everything else
* he was later told if he didn't request to get out of the military he would probably end up in prison 
* he started drinking more and using drugs


* he wrote a few bad checks only for food, milk, and pampers for his baby
* he did not pay his bills or support his drug habit from the bad checks

4.  The applicant provides:

* Two self-authored letters, dated 7 and 15 January 2013
* Army Achievement Medal Certificate
* Certificates of training and license
* Honorable Discharge Certificate, dated 27 March 1986
* Tank Turret Mechanic Course Diploma
* DD Form 214

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 was born on 24 May 1962.  He enlisted in the USAR on 
7 January 1982 for a period of 6 years.  On 3 June 1982, he was ordered to initial active duty for training.  He completed his training and he was awarded military occupational specialty (MOS) 75E (personnel actions specialist).  On 9 October 1982, he was honorably released from active duty and transferred to the control of his USAR unit.  He completed 4 months and 7 days of net active service this period.

3.  On 14 April 1983, he enlisted in the USAR Delayed Entry Program (DEP).  On 26 July 1983, he was discharged from the USAR DEP and on 27 July 1983, he enlisted in the Regular Army (RA) for a period of 3 years.  He completed his training and he was awarded MOS 45N (M6OA1/A3 tank turret mechanic).  On 27 March 1986, he was honorably discharged for immediate reenlistment.  He reenlisted on 28 March 1986 for a period of 5 years.


4.  On 1 July 1987, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for operating a vehicle on Fort Carson, CO while drunk.

5.  On 21 January 1988, court-martial charges were preferred against him for:

* disobeying a lawful order from a noncommissioned officer (NCO) on
27 October 1987
* willfully and wrongfully damaging property of another Soldier on
21 September 1987
* assaulting a female civilian on 21 September 1987
* writing bad checks (7 specifications) between 11 May and 30 November 1987 

6.  Trial by special court-martial was recommended.

7.  On 5 February 1988, he consulted with counsel and 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.  He acknowledged that by submitting his request for discharge he was guilty of the charges against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate, he might be ineligible for many or all benefits administered by the Veterans Administration (VA), he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected to make a statement in his own behalf.  In summary, he stated:

* he wanted a discharge to take care of his wife and child
* because of some mistakes he made, he put his military career in jeopardy
* he wanted to go back to Texas and get a job or go back to school

8.  On 25 February 1988, the separation authority, a major general, approved the applicant's voluntary 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 Certificate.


9.  On 2 March 1988, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 4 years, 7 months, and 6 days of net active service this period for a total of 4 years, 11 months, and 13 days of creditable active service.  

10.  His DD Form 214 for this period of service shows in:

* item 12e the entry "01  02  14," indicating he completed 1 year, 2 months, and 14 days of total prior inactive service
* item 13 he was awarded or authorized the:

* Army Service Ribbon
* Overseas Service Ribbon
* Army Good Conduct Medal
* Expert Marksmanship Qualification Badge with Rifle Bar (M-16)
* Driver and Mechanic Badge with Driver-W Bar

* item 24 the entry "Under other than honoralbe [sic] conditions"

11.  On 14 June 2002, the Army Discharge Review Board denied his request for a discharge upgrade.

12.  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 contends he was young; however, age is not a sufficiently mitigating factor.  He was nearly 20 years old when he enlisted in the USAR and he successfully completed training.  He was over 21 years old when he initially enlisted in the RA.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  Although he contends his decorations and awards do not support his character of service, his record of service during his last enlistment included one NJP and serious offenses for which special court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.

4.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

5.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20130002942



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ABCMR Record of Proceedings (cont)                                         AR20130002942



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