IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100026282 


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 an honorable discharge.  

2.  He states that he believes the type of discharge given to him was unjust.  He was told by a military attorney to accept the discharge in lieu of court-martial, which has jail time.  He was very scared and did not understand his rights, so he took what he thought to be the lesser punishment.  He is now a responsible adult and regrets his period of immaturity and lack of self discipline. 

3.  He also states that being a young and immature Soldier, he did not realize how important it was to follow directives given by military authorities.  He honestly does not remember in detail what really occurred, but he does know that he had a temper and he acted in an unprofessional manner.  His experience has taught him how to be a productive member of society, to have self discipline, and follow rules and regulations even if he does not agree with them.  

3.  He provides:

* DA Form 2 (Personnel Qualification Record - Part I)
* DA Form 2-1 (Personnel Qualification Record - Part II)
* Enlistment/Reenlistment Document
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Discharge orders
* An Official Transcript of his General Educational Development (GED) Test Scores
* Journeyman's Certificate
* Letter from the National Personnel Records Center
* Eight character reference letters

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 military records show he enlisted in Regular Army (RA) in pay grade E-1 on 7 November 1979, for 3 years at age 18.  He completed the training requirements and he was awarded military occupational specialty 11B (Infantryman).  

3.  He was advanced to pay grade E-2 on 1 April 1980 and he was reduced to pay grade E-1 on 7 July 1980.

4.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, the available evidence contains a DD Form 214 which shows he was discharged on 12 August 1980 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service in lieu of trial by court-martial in pay grade E-1.  His service was characterized as under other than honorable conditions.  He was credited with completion of 9 months and 6 days of net active service and no lost time.

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

6.  He also provided eight character reference letters attesting to him being an honest, intelligent, hard working, and dependable person.  


7.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided 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 at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 

8.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.

9.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge to an honorable discharge.  

2.  His contention that his youth and immaturity impacted his ability to serve successfully is without merit.  He enlisted in the RA at age 18.  There is no evidence that he was any less mature than other Soldiers of the same age or of a younger age who successfully completed their service obligations.  

3.  The documents that were submitted with his application were carefully considered.  The applicant's record is void of the facts and circumstances which led to his voluntary discharge.  However, there is a DD Form 214 available showing he was discharged on 12 August 1980 under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service in lieu of a trial by court-martial.



4.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, request discharge in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  He provided no evidence that would indicate the contrary.  Therefore, it is presumed his discharge accurately reflects his overall record of service during the period that he served.  

5.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100026282



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ABCMR Record of Proceedings (cont)                                         AR20100026282



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