IN THE CASE OF:	  

		BOARD DATE:	  6 February 2014

		DOCKET NUMBER:  AR20130009112 


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 discharge under other than honorable conditions.

2.  The applicant states it would make it easier for better jobs and housing. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 1 August 1989 for a period of 
5 years.  He completed his training and was awarded military occupational specialty 77W (water treatment specialist).   
3.  In March 1990, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty. 

4.  On 13 July 1990, charges were preferred against him for:

* attempting to sell military property
* violating a lawful general regulation (selling a Kevlar helmet without his unit commander's authorization)
* larceny (four specifications) 

5.  On 3 July 1990, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that by submitting his request for discharge he was guilty of a charge 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 given an under other than honorable discharge, he might be ineligible for many or all benefits administered by the Department of Veterans Affairs, 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 not to make a statement in his own behalf.  

6.  Records show he was placed into confinement for one day (24 July 1990) for writing bad checks.

7.  On 31 August 1990, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.

8.  On 28 September 1990, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed 1 year, 1 month, and 27 days of creditable active service with 1 day of lost time.  

9.  On 6 February 1998, the Army Discharge Review Board denied his request for a general discharge.

10.  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 would like his discharge upgraded to make it easier for better jobs and housing.  However, discharges are not upgraded for the purpose of enhancing employment opportunities.

2.  His record of service included one NJP, serious offenses for which trial by court-martial was recommended, and 1 day of lost time.  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 discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

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

5.  In view of the foregoing, there is no 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)                                         AR20130009112





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ABCMR Record of Proceedings (cont)                                         AR20130009112



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