IN THE CASE OF:	  

		BOARD DATE:	        18 DECEMBER 2008

		DOCKET NUMBER:  AR20080015234 


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 to an honorable discharge and that his rank and pay grade of private first class (PFC)/E-3 be restored. 

2.  The applicant essentially states that his case was adjudicated by a military court around January 1978 and that he was found not guilty.

3.  Although the applicant states that he provided a letter from a Department of the Army Judge Advocate General office, he actually provided a letter, dated 
24 January 1978, from the Veterans Administration, which is now known as the Department of Veterans Affairs (DVA), 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.  The applicant’s military records show that he enlisted in the Regular Army on 1 April 1975.  He completed basic and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).  He departed for a tour in Italy on 23 August 1975.  In August 1976, he was listed as a patient in the 97th General Hospital in Germany, and was subsequently reassigned to the Medical Holding Company, Walter Reed Army Medical Center in Washington, D.C..  In February 1977, he was reassigned to Fort Campbell, Kentucky.

3.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records do contain a properly constituted DD Form 214 (Report of Separation from Active Duty).  This document shows that the applicant was discharged under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  This document further shows that he was issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  

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

5.  The applicant stated that his case was adjudicated by a military court around January 1978 and that he was found not guilty.

6.  The applicant provided a letter, dated 24 January 1978, which shows that the DVA determined that his discharge was found to have been issued under honorable conditions for DVA purposes only.

7.  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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.  Soldiers serving in a rank and pay grade 

higher than private (PV1)/E-1 have consistently been reduced to PV1 in conjunction with an approved discharge under the provisions of Chapter 10, Army Regulation 635-200.  

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.  

9.  Army Regulation 635-200, paragraph 3-7b, also 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.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his discharge under other than honorable conditions should be upgraded to an honorable discharge.

2.  The applicant’s contention that his case was adjudicated by a military court around January 1978 and that he was found not guilty was considered, but not found to have any merit.  Additionally, although the applicant claimed that he provided a letter from a Department of the Army Judge Advocate General office, he actually provided a letter from the DVA which shows that agency determined that his discharge was found to have been issued under honorable conditions for DVA purposes only.  However, no court ever found him not guilty, as he voluntarily (emphasis added) requested discharge in lieu of a trial by court-martial.  

3.  Although the facts and circumstances pertaining to the applicant’s discharge are not in his military records, it is clear that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, there is no basis for upgrading the applicant’s discharge under other than honorable conditions to an honorable or general discharge in this case.  He is also not entitled to restoration of his rank and pay grade of PFC/E-3.

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)                                         AR20080015234



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ABCMR Record of Proceedings (cont)                                         AR20080015234



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