IN THE CASE OF:	  

		BOARD DATE:	        20 NOVEMBER 2008

		DOCKET NUMBER:  AR20080014068 


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.

2.  The applicant states, in effect, that the accusations of which he was charged and discharged under were not proven, nor could they be proven.  There was bias at the location based on person or persons involved and their relation to his superiors. 

3.  The applicant did not provide additional documentary evidence in support of this application.   

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 3 May 1976, the applicant enlisted in the U.S. Army Reserve Delayed Entry Program (DEP) for 6 years.  On 9 June 1976, he was discharged from the DEP and on 10 June 1976, he enlisted in the Regular Army for 4 years.  He completed training and he was awarded military occupational specialty 13E (Field Artillery Cannon Operations).  He attained the rank and grade of sergeant (SGT)/E-5.  He reenlisted on 30 January 1980 and 17 June 1983.  

3.  On 5 December 1983, a summary court-martial convicted the applicant of failing to obey a written order not to drive when his driving privileges had been revoked and 2 specifications of making a false official statement.  The resultant sentence included a forfeiture of $355.00. 

4.  The specific facts and circumstances leading to the applicant's discharge are not contained in the official records.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Enlisted Personnel Separations), by reason of for the good of the service – in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions and he was reduced to the rank and grade of private (PV1)/E-1.  He completed 12 years, 10 months, and 10 days of active duty service.

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 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.  An under other than honorable conditions discharge is normally considered appropriate.  

6.  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.

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 specific facts and circumstances leading to the applicant's discharge are not contained in the official record.  The only available evidence is the applicant's DD Form 214 showing he was discharged under the provisions of chapter 10, Army Regulation 635-200, by reason of in lieu of trial by court-martial.  With this type of discharge, the applicant would have been charged with the commission of an offense punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  The charges against him are unknown.  However, he would have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted guilt to the stipulated or lesser included offenses under the UCMJ.  As such, his contention that the accusations against him were not proven and could not be proven are without merit because he voluntarily admitted guilt to the charges. 

2.  In the absence of evidence to the contrary, administrative regularity is presumed in the applicant's discharge.  The applicant provided no evidence in support of his contention that there was bias in his case.  Therefore, there is no basis in the available evidence upon which to grant his request.  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

____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)                                         AR20080014068



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ABCMR Record of Proceedings (cont)                                         AR20080014068



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