IN THE CASE OF:	  

		BOARD DATE:	       11 SEPTEMBER 2008

		DOCKET NUMBER:  AR20080010427 


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 that his under other than honorable conditions discharge be upgraded to honorable and that his rank and grade be restored to specialist/E-4.

2.  The applicant states, in effect, that he was unjustly charged with receipt of stolen property and that he was facing a court-martial which he believed would not have been fair.  He was charged after he out-processed from his final duty station and was due to fly home; and he had the choice of staying and going to trial or going home.  Since his discharge he has been employed by the U.S. Postal Service since 1986. 

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.  On 18 April 1978, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 10 May 1978, he was discharged from the DEP and enlisted in the Regular Army for 3 years.  He completed training requirements and was awarded military occupational specialty 71L (Administrative Specialist).  On 19 October 1979, the applicant reenlisted for a period of 4 years.  He attained the grade of specialist/E-4. 
 
3.  On 29 April 1986, the applicant was charged with offenses under the Uniform Code of Military Justice (UCMJ).  The charge sheet was not available in the official record.  After consulting with counsel, the applicant submitted a request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 10.  This request shows that he was charged with "2 violations of Article 134."  The applicant indicated in his request that he understood he could be discharged under other than honorable conditions, furnished an under other than honorable conditions discharge, and that he may be deprived of many or all Army benefits as a veteran under both Federal and State law.  He also acknowledged that he may expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  

4.  On 9 May 1986, the separation authority approved the applicant's request for discharge and directed he be reduced to the lowest enlisted grade and issued an under other than honorable conditions discharge.  

5.  Accordingly, on 15 May 1986, the applicant was discharged with an under other than honorable conditions discharge under the provisions of Army Regulations 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was credited with 6 years, 6 months, and 27 days of active duty service.

6.  Army Regulation 635-200 (Enlisted Personnel Separations) 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 a discharge for the good of the service in lieu of trial by court-martial.  The requests may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt. 




Army policy states that although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.  However, the separation authority may direct a GD if such is merited by the Soldier's overall record during the current enlistment.

7.  Paragraph 1-14, Army Regulation 635-200, stipulates that when a Soldier is discharged under other than honorable conditions, the separation authority will direct an immediate reduction to the lowest enlisted grade.  

8.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

9.  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.

10.  Article 134 of the Manual for Courts-Martial covers many charges, to include: adultery; bigamy; assault; burglary or housebreaking; bribery and graft; uttering worthless checks; child endangerment; disorderly conduct; and firearm discharging.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's 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.  Although the specific charges against the applicant are unknown, in the absence of evidence to the contrary, administrative regularity is presumed in his discharge process.

2.  In requesting a Chapter 10 discharge, the applicant admitted guilt to the stipulated or lesser-included offenses under the UCMJ.  The Board noted that  the applicant's contentions related to evidentiary and procedural matters which should have been addressed in a trial by court-martial.  The applicant was provided the opportunity to proceed to court-martial in order to present evidence in his case; however, as he voluntarily admits, he chose to go home and not continue to court-martial.

3.  Because the applicant received an under other than honorable conditions discharge, Army regulations require that he be reduced to the lowest enlisted grade.  As such, he was properly reduced to private/E-1, and there is no basis upon which to restore his grade.  

4.  Given the above, the Board found that the applicant has not submitted evidence of sufficient merit to refute the type and nature of his discharge.  As such, his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, there is no justification to change the characterization of his service or restore him to the grade of specialist/E-4.

5.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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)                                         AR20080010427





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080010427



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1