IN THE CASE OF:	  

		BOARD DATE:	      18 AUGUST 2009

		DOCKET NUMBER:  AR20090002781 


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 a general discharge under honorable conditions.

2.  The applicant states that due to medical findings he needs treatment for service connected injuries.

3.  The applicant provides no 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.  After having had prior service in the U. S. Army Reserve the applicant enlisted in the Regular Army on 31 October 1990.

3.  The applicant's discharge proceedings are not available for review.  However, his records contain an Army Discharge Review Board (ADRB) Case Report which shows the following:

	a.  The applicant was charged with rape, larceny, adultery, and indecent assault.

	b.  On 3 August 1992, after consulting with counsel, he requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 10, for the good of the service in lieu of trial by court-martial.  Part V of these proceedings show the applicant authenticated a statement with his own signature acknowledging that he consulted with legal counsel, who fully advised him of his rights and of the seriousness of the offenses for which he was charged.  He stated he understood the implications of the request for discharge under the provisions of chapter 10, acknowledged that he was guilty of the offenses for which he was charged, and he understood that he could receive an under other than honorable conditions discharge.

	c.  On 24 August 1992, the separation authority approved the applicant’s request for discharge and directed the issuance of an under other than honorable conditions discharge.

4.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 14 September 1992 under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with service characterized as under other than honorable conditions.  

5.  The ADRB disapproved the applicant's request for an upgrade of his discharge on 1 April 1998.

6.  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.

7.  Army Regulation 635-200, of enlisted personnel 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 ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for medical benefits.

2.  The applicant's record shows he was charged with the commission of offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations in which the applicant must admit guilt of the charges.  

3.  Lacking evidence to the contrary, administrative regularity is presumed and it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Therefore, it is concluded that the characterization of service and reason for the applicant's discharge were both proper and equitable.  As a result, his discharge accurately reflects his overall record of service.

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)                                         AR20090002781



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ABCMR Record of Proceedings (cont)                                         AR20090002781



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