BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090003553 


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 an upgrade of his discharge under other than honorable conditions to at least a general discharge.

2.  The applicant states, in effect, that when Captain D__n B___y told him to sign a request for discharge for the good of the service under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), he failed to advise him of the full negative ramifications associated with a discharge of this nature.  The applicant continues that had he been properly counseled, he would not have signed the request.

3.  The applicant provides a self-authored statement as 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.  The applicant's record shows that he enlisted in the United States Army Reserve Delayed Entry Program on 28 December 1979.  He was subsequently discharged for immediate enlistment in the Regular Army and entered active duty on 4 January 1980.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 19F (Tank Driver).  At a later date, the applicant reclassified into MOS 19E (M48/M60 Armor Crewman).  He completed an honorable period of enlistment on 29 September 1982 and reenlisted immediately.  The highest rank the applicant achieved while serving on active duty was sergeant (SGT)/pay grade E-5.  However, at the time of his separation, the applicant held the rank of private (PVT)/pay grade E-1.

3.  The complete 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 3 August 1983 under the provisions of chapter 10 of Army Regulation 635-200.  The narrative reason for the applicant's discharge was for the good of the service and his characterization of service was determined to be under other than honorable conditions.  This form also shows he completed 3 years, 7 months, and 0 days of creditable active service during this period of enlistment.  The form further shows the applicant was credited with 27 days of excess leave during the period 28 December 1982 through 23 January 1983.

4.  There is no evidence in the available record that indicates 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 provides a self-authored statement in which he, in effect, summarizes the highlights of his service to include his promotions, training he completed, two Enlisted Evaluation Reports he received, a Skills Qualification Test score he attained, the awards and decorations that he received, and his receipt of an honorable discharge for his initial period of enlistment.

6.  The applicant continues that he reenlisted for a period of 3 years with reassignment to Korea as his reenlistment option.  The applicant states that upon arrival at his new unit, he was informed by Command Sergeant Major H___s that based upon his MOS of 19E, there was no job for him in Korea.  As a result, he was temporarily assigned to the 249th Military Police Detachment where he was responsible for transporting military prisoners from jail to court, to medical appointments, and at times to be returned to their original units of assignment.  The applicant states that from January to June of 1983, he had no problems with the performance of his duties.

7.  The applicant states, in effect, that on the day of the incident which led to his discharge, he and a prisoner whom he was transporting were standing at the doors of the van when a colonel (COL) and his driver pulled over to confront him.
The applicant states that he did not let the prisoner escape and at no time was the prisoner out of his sight.  He continues that the COL informed him that the only reason he told his driver to pull over was the fact that the van had a 249th Military Police sign in the window.

8.  The applicant states that once "I was assigned CPT B___y, I tried to explain the true facts of the case, but CPT B___y plainly stated, 'you will not win against a full Colonel, sign the Chapter 10, and do yourself a favor.  The Chapter 10 will not hurt you, you will just be discharged from the service!'"  He continues that at no time did CPT B___y want to hear his side of the story and contends that at no time did CPT B___y fully explain the negative aspects of a discharge under the provisions of Chapter 10 of Army Regulation 635-200.  The applicant contends that had he known the full impact, he would have fought for justice in his case.

9.  The applicant continues that for the last 26 years he has felt that he was misled into throwing away a military career that was obviously progressing upward and he had no idea of how to seek justice until he was reading a book on veterans benefits and came across the section addressing correction of military records.  He concludes that although he has no additional evidence to submit, he respectfully asks the Board to upgrade his discharge to a minimum of under honorable conditions so he can be entitled to military benefits for the 3 years, 5 months, and 17 days he proudly served in the United States Army, before following CPT B___y's bad advice.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.


11.  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.  

12.  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's contention that his record should be corrected by upgrading his discharge under other than honorable conditions to at least a general discharge was carefully considered.

2.  The applicant's record shows he was charged with the commission of an offense punishable under the Uniform Code for Military Justice with a punitive discharge.  By his own admission, the applicant received legal counsel.

3.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 required an admission of guilt to the offense(s) charged and the requests were voluntary requests for discharge in lieu of trial by court-martial.  In the absence of evidence to the contrary, Government regularity insofar as the discharge process must be presumed.  Therefore, there is insufficient evidence to show that the applicant is entitled to either a general or an honorable discharge.

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.



      _______ _   __x_____   ___
               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)                                         AR20090003553





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ABCMR Record of Proceedings (cont)                                         AR20090003553



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