IN THE CASE OF:	  

		BOARD DATE:	  13 July 2010

		DOCKET NUMBER:  AR20100001057 


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 under other than honorable conditions discharge to a general discharge.

2.  The applicant states he served honorably and earned his Department of Veterans Affairs benefits.  He does not understand why he was given this type of discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) for the period ending 4 September 1979.

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 14 February 1978.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 63C (Track Vehicle Mechanic).  The highest rank/grade he attained during his military service was private (PV2)/E-2. 

3.  The applicant’s records also show he served in Germany from on or about 4 September 1978 to on or about 2 September 1979.  His awards and decorations were the Army Service Ribbon and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 28 March 1978, for being drunk and disorderly.  His punishment consisted of a forfeiture of pay and confinement at a correctional custody facility.

	b.  on 14 August 1978, for wrongfully possessing a quantity of marijuana.  His punishment consisted of a forfeiture of pay and extra duty.

5.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his records contain the following documents:

	a.  a copy of a DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 11 July 1979, that shows he was pending a special court-martial for violation of:

* Article 86 of the Manual for Courts-Martial (MCM), failure to repair
* Article 90, disobeying a lawful order from a commissioned officer
* Article 91, assault upon a Noncommissioned Officer while in the execution of his duties
* Article 128, simple assault
* Article 134, being drunk and disorderly

	b.  A copy of a DA Form 268, dated 11 July 1979, that shows he was eliminated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

	c.  A properly-constituted DD Form 214 that shows he was discharged on 4 September 1979 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial with an under other than honorable condition character of service.  This form also shows he completed 1 year, 6 months, and 21 days of active service.
6.  There is no indication in his records he applied to the Army Discharge Review Board (ADRB) 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, a discharge under other than honorable conditions is normally considered appropriate.

8.  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 to a general discharge.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 4 September 1979 under the provisions of Army Regulation 635-200, chapter 10, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, 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 evidence 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.



      ____________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)                                         AR20100001057



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ABCMR Record of Proceedings (cont)                                         AR20100001057



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