IN THE CASE OF:	  

		BOARD DATE:	      30 JUNE 2009

		DOCKET NUMBER:  AR20090002858 


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, an upgrade of his under other than honorable conditions discharge. 

2.  The applicant states that the punishment he received was too severe compared with today's standards.  He adds that his overall period of military service was successful as indicated by his good conduct and efficiency ratings, behavior, and proficiency marks; numerous awards, decorations, and letters of recommendation; two previous honorable discharges; and promotion potential.  He also adds that he has been a good citizen since his discharge.

3.  The applicant provides a copy of his Honorable Discharge Certificates, dated 16 February 1981 and 15 March 1977; a copy of a DA Form 1059 (Service School Academic Evaluation Report), dated 11 June 1982; and a copy of his resume. 

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 records show he enlisted in the Regular Army for a period of 3 years on 12 June 1974.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 17K (Ground Surveillance Radar Operator).  He was honorably discharged on 15 March 1976 for the purpose of immediate reenlistment and subsequently executed a 4-year reenlistment on 16 March 1977 and a 3-year reenlistment on 17 February 1981.  He promoted through the ranks to sergeant on 30 July 1976 and staff sergeant on 1 July 1982.

3.  The applicant's records show he also held MOS 11B (Infantryman) and served in Germany from September 1975 to March 1976 and November 1977 to November 1981.  

4.  The applicant's records further show he was awarded the National Defense Service Medal, the Army Commendation Medal, the Good Conduct Medal (2nd Award), the Expert Marksmanship Qualification Badge with Rifle Bar, the Drill Sergeant Badge, the Army Service Ribbon, the Noncommissioned Officer Professional Development Ribbon, and the Overseas Service Ribbon.

5.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 12 May 1983 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial.  He completed 8 years and 11 months of creditable active service.

6.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s    15-year statute of limitation.

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, 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, an under other than honorable conditions discharge is normally considered appropriate.

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, 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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 12 May 1983 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment.   

4.  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 evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.


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)                                         AR20090002858





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090002858



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1