IN THE CASE OF: BOARD DATE: 13 January 2009 DOCKET NUMBER: AR20080016057 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, that his discharge under other than honorable conditions be upgraded. 2. The applicant asks that he be considered for an upgrade based on his military service. 3. The applicant provides no 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 9 September 1980. He was trained as a cavalry scout and performed those duties in Germany and Korea. He was promoted to the rank of sergeant (SGT)/E-5 in January 1984. His personal decorations include two awards of the Army Achievement Medal and two awards of the Army Good Conduct Medal. 3. The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, the applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under other than honorable conditions on 5 August 1988 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of court-martial. He had served a total of 7 years, 10 months, and 27 days of creditable active service. 4. In October 1993 the Army Discharge Review Board (ADRB) denied the applicant's petition to upgrade his discharge after a review of the applicant's records. The facts and circumstances surrounding the applicant's discharge were not summarized in the ADRB proceedings, only merely noted the discharge was both proper and equitable. The ADRB also noted the applicant did not submit any issues of propriety or equity as a basis for his request to upgrade his discharge. 5. 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. 6. Army Regulation 635-200, governs the policies and procedures for the separation of enlisted personnel. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate. 7. 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. DISCUSSION AND CONCLUSIONS: 1. The applicant's apparent honorable service prior to the conduct which ultimately resulted in his voluntary discharge in lieu of trial by court martial has been noted. However, in the absence of evidence that his discharge under other than honorable condition was in error, unjust, or unfair, there is no basis to upgrade the applicant's discharge based solely on the fact that he may have previously served honorably. 2. In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request. 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. _________xxx_____________ 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) AR20080016057 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080016057 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1