IN THE CASE OF:	

		BOARD DATE:	  6 September 2011

		DOCKET NUMBER:  AR20110002208 


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, in effect, an upgrade of his discharge under other than honorable conditions.

2.  He states his discharge came about because he played a joke that was taken the wrong way.  He did not know the charge would be that serious or the degree of trouble he was in.  He feels it is in his best interest to clear up this problem, as it has been causing him worry since his discharge.  He apologizes for his conduct while serving in the Army.

3.  He provides no additional evidence.

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.  His military personnel records show he enlisted in the Regular Army on 2 July 1974 for 2 years.  He was honorably released from active duty on 25 June 1976.

3.  He again enlisted in the Regular Army on 27 September 1977.  After completion of training, he served in military occupational specialty 16E (Hawk Fire Control Crewman).

4.  His record contains a DD Form 458 (Charge Sheet), dated 19 February 1979, that shows he was charged with an offense while assigned in the Federal Republic of Germany.  Between 6 and 7 October 1978, he stole a tape deck that belonged to the U.S. Government.

5.  On 13 March 1979 after consulting with legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits.  He elected not to submit a statement on his own behalf.

6.  His record contains a document from the staff judge advocate (SJA) office that shows his immediate commander, battalion commander, and group commander supported his request for discharge in lieu of trial by court-martial and recommended his discharge under other than honorable conditions.

7.  A memorandum addressed to the Commanding General (CG), 3rd Infantry Division, shows the SJA office reviewed the request for voluntary discharge and had no legal objection to the CG approving the request with issuance of an Undesirable Discharge Certificate.

8.  Accordingly, on 24 April 1979 he was discharged under other than honorable conditions in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  He completed 3 years, 6 months, and 22 days of total active service and had no lost time.  Item 27 (Remarks) of his DD Form 214 contains the entry "administrative discharge conduct triable by court-martial."

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

10.  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 under the Uniform Code of Military Justice (UCMJ) 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 the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record or if the Soldier's record is so meritorious that any other characterization clearly would be improper.

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 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.  His request to upgrade his discharge under other than honorable conditions was carefully considered; however, is not supported by the evidence of record.

2.  He has not submitted sufficient evidence or a convincing argument to support his request.  The evidence shows court-martial charges were preferred against him.  However, he voluntarily submitted a request for discharge for the good of the service in lieu of trial by court-martial.

3.  The evidence shows his chain of command supported his request and he was discharged in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt to the stipulated offenses under the UCMJ.

4.  The evidence shows that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The characterization of service for this type of discharge is normally under other than honorable conditions and the evidence shows he was aware of that prior to requesting discharge.  The reason for discharge and the characterization of service were both proper and equitable.

5.  In view of the foregoing, there is no basis to grant 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 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)                                         AR20110002208



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110002208



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1