IN THE CASE OF:	  

		BOARD DATE:	  3 December 2009

		DOCKET NUMBER:  AR20090011998 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he desires that his discharge be upgraded so that he can take advantage of veteran’s benefits.  He also states that he had no proper understanding or help in understanding the decision he made at the time and he believes that he made a grave mistake.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 enlisted in the Regular Army in Cleveland, Ohio, on 21 March 1977 for a period of 3 years and training as a Pershing Electronics Material Specialist.  He completed his basic training at Fort Sill, Oklahoma, and remained at Fort Sill to undergo his advanced individual training (AIT).

3.  On 9 June 1977, nonjudicial punishment was imposed against the applicant for the wrongful possession of marijuana.

4.  The applicant was disqualified for assignment in a nuclear duty position and was unable to complete his AIT.  Accordingly, he was transferred to Fort Sam Houston, Texas, to undergo AIT as a medical records specialist.  He completed that AIT and was transferred to Germany on 5 September 1977.

5.  On 3 February 1978, the applicant was arraigned and tried by a special court-martial on charges of larceny (four specifications), breaking and entering with intent to commit larceny (one specification), assaulting another Soldier (one specification), and communicating a threat to kill another Soldier (one specification).

6.  The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records because they were loaned to the Department of Veterans Affairs in Cleveland, Ohio, in 1978.  However, the records do show that the applicant's request for discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, was approved on 24 February 1978.

7.  The court-martial proceedings were terminated by withdrawal of the charges and specifications by the general court-martial convening authority based on the approval of the applicant's request for discharge under chapter 10.

8.  Accordingly, he was discharged under other than honorable conditions on 10 April 1978 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year and 10 days of total active service.

9.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the 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 voluntary request for discharge for the good of the service in lieu of trial by court-martial at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions was then and is still 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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation for the good of the service to avoid trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant’s contentions and supporting documents have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to his overall undistinguished record of service.

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.

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)                                         AR20090011998



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ABCMR Record of Proceedings (cont)                                         AR20090011998



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