BOARD DATE:	  22 March 2011

		DOCKET NUMBER:  AR20100023380 


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 he desires to have his discharge upgraded so he can obtain medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 Richmond, Virginia, on 5 June 1979 for a period of 3 years, training as a Hawk fire control crewman, and assignment to Korea.

3.  He completed one-station unit training at Fort Bliss, Texas, and was transferred to Korea on 5 October 1979 for assignment to an air defense artillery battery.

4.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Roanoke, Virginia, on 10 June 1980.

5.  However, his records do contain a duly-authenticated DD Form 214 signed by the applicant that shows he was discharged under other than honorable conditions on 5 March 1980 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  He completed 9 months and 1 day of total active service.

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

7.  On 30 November 1988, the applicant authorized the release of information from his official records to a parole and probation officer in Roanoke, Virginia.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate 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 is normally considered appropriate.

9.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  Accordingly, the type of discharge directed and the reasons appear to be appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he would have 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.  In doing so he would have admitted guilt to the charges against him.
 
3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given his undistinguished record of service and the short period of his service.  His service simply did not rise to the level of under honorable conditions and the Board does not upgrade discharges simply for the purposes of obtaining benefits.

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 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 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)                                         AR20100023380



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ABCMR Record of Proceedings (cont)                                         AR20100023380



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