BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110003515 


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 discharge under other than honorable conditions to an honorable discharge.

2.  The applicant states he served with honor and distinction from January 1976 through December 1979.  He was caught up in the wrong place with the wrong crowd.  He regrets this mistake and has learned from it.  He has since worked with veterans.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three 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 records show he enlisted in the Regular Army (RA) on 6 January 1976 and held military occupational specialty 72D (Telecommunications Operator).  He served in Italy from August 1977 to December 1978.

3.  He was honorably released from active duty on 29 December 1978 and he was transferred to the U.S. Army Reserve Control Group (Reinforcement) to complete his remaining service obligation.  He completed 2 years, 11 months, and 24 days of creditable active service.

4.  He again enlisted in the RA on 27 March 1979 and subsequently served in Italy from April 1979 through his discharge in June 1980.

5.  On 20 June 1979, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for dereliction in the performance of his duties.  He received a suspended punishment which was later vacated and ordered executed.

6.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  However, his records contain:

	a.  various endorsements by his chain of command recommending approval of his voluntary request for discharge in lieu of trial by a court-martial with the issuance of a discharge under other than honorable conditions and

	b.  a duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions on 12 June 1980 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, in lieu of trial by court-martial.  This form also shows he completed 1 year, 2 months, and 16 days of creditable active service during this period.

7.  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 limitation.

8.  He submitted three character reference letters.

	a.  A letter from a pastor, dated 21 January 2010, describes some of the applicant's duties and then comments on his high character, compassion, and morals.

	b.  A letter from a friend, dated 24 June 2010, describes the applicant as an honest, straight-forward, and religious person.

	c.  A letter from a Veterans Service Office official, undated, comments on the applicant's patriotic spirit, motivation, and strong desire to help others.

9.  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.

10.  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.

11.  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.  The applicant contends that his discharge under other than honorable conditions should be upgraded.

2.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 12 June 1980 under the provisions of Army Regulation 635-200, chapter 10.

3.  The issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant provided no evidence that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service during his last enlistment.

4.  The applicant's character reference letters as well as his post-service achievements and support to other veterans are noted; however, they are not sufficiently mitigating to grant him 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)                                         AR20110003515



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ABCMR Record of Proceedings (cont)                                         AR20110003515



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