BOARD DATE:	  12 July 2011

		DOCKET NUMBER:  AR20100030336 


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

2.  The applicant states there were no charges filed against him for anything.

3.  The applicant provides 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.  He enlisted in the Regular Army on 20 October 1976 for a period of 3 years.  He completed his training and was awarded military occupational specialty 55B (ammunition specialist).

3.  On 25 April 1977, nonjudicial punishment (NJP) was imposed against the applicant for larceny.

4.  On 27 May 1977, NJP was imposed against the applicant for disobeying two lawful orders and using provoking words towards a sergeant.

5.  On 4 November 1977, NJP was imposed against the applicant for sleeping on post.

6.  His record is void of the specific facts and circumstances surrounding his discharge.  However, his DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial on 2 May 1999 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 2 years, 6 months, and 13 days of creditable active service.

7.  There is no evidence the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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.  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.

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.  He contends there were no charges filed against him.  However, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.

2.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20100030336



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100030336



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1