IN THE CASE OF:	  

		BOARD DATE:	  11 August 2011

		DOCKET NUMBER:  AR20110003230 


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 be upgraded to honorable and the  reason for his discharge be changed.

2.  The applicant states no real investigation into the charges was done and the charges were based on the allegations of a private who could not handle authority.  He claims he had no personal contact with the private in question and was not even in the barracks on the date in question.  He states there was another black sergeant on duty that day.

3.  The applicant provides a self-authored statement outlining his version of events.

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 served on active duty in the Regular Army (RA) from 3 November 1975 through 1 November 1979, at which time he was honorably released from active duty and transferred to the U.S. Army Reserve.  He again enlisted in the RA on 25 March 1980 and began the enlistment under review.

3.  The applicant's record shows he earned the Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Army Good Conduct Medal (2nd Award), and Army of Occupation Medal.  His record documents no acts of valor or significant achievement.

4.  On 29 July 1985, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for three specifications of violating Article 92 of the Uniform Code of Military Justice (UCMJ) by wrongfully fraternizing and fornicating with a private/E-1, a female receptee not his wife.

5.  On 21 August 1985, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-marital and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

6.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He also confirmed his understanding that if his request for discharge were approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.

7.  On 28 August 1985, the separation authority approved the applicant's request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to private/E-1.  On 4 September 1985, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he completed 4 years and 11 days of creditable active service.

8.  On 7 April 1987, the applicant appeared before the Army Discharge Review Board (ADRB) with his counsel.  After carefully reviewing the applicant's record of service and the issues and testimony presented, the ADRB found the applicant's discharge was proper and equitable and voted not to change the character or reason for his discharge.

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.

	a.  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.

	b.  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.

	c.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for a change to the character and reason for his discharge has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He could have elected to submit a statement voicing his current contentions, but he elected not to do so.

3.  The evidence of record further confirms the applicant voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge.  It further shows that in his request for discharge, he admitted guilt to an offense that authorized the imposition of a punitive discharge.  Given the voluntary nature of his discharge request, his argument that the charges were not properly investigated is not sufficiently credible to support relief.

4.  The under other than honorable conditions discharge he received was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of his discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  Further, there is no error or injustice related to his separation processing that would support a change to the authority and reason for discharge.

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)                                         AR20110003230



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ABCMR Record of Proceedings (cont)                                         AR20110003230



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