IN THE CASE OF:	  

		BOARD DATE:	  1 September 2011

		DOCKET NUMBER:  AR20110003807 


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 a general discharge under honorable conditions or honorable discharge.

2.  The applicant states other former military personnel only served 90 days for getting in trouble and still received a general or honorable discharge.  He completed boot camp, advanced individual training, conducted military funerals, and served over 180 days.  He thinks he was treated unfairly.  He was never incarcerated while in the military nor has he been incarcerated since his discharge and that speaks to his character.  Since his discharge he has been an upright citizen and employed as a salesman, mechanic, and manager.  He is currently self-employed and involved with his community.

3.  He contends he was discharged at a young age.  He was a typical young man who thought he knew it all but he is truly sorry for the problems that occurred during his time in the U.S. Army.

4.  The applicant provides:

* Self-authored letter, dated 26 January 2011
* DD Form 214 ( Certificate of Release or Discharge from Active Duty), effective 29 May 1981
* DA Form 4126-R (Bar to Reenlistment Certificate), dated 26 June 1980
* Résumé for the period 1981 - present

* Letter of Support with allied document, dated 12 May 2011
* Certificate of Achievement, dated 28 January 1981
* Various civilian certificates of achievement, endowment, training, support, and recognition
* State of Ohio Masonic Lodge membership
* Minority Business Enterprise Certificate

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 enlisted in the Regular Army on 5 January 1979 at the approximate age of 19 years and 10 months.  He completed his initial training and was awarded military occupational specialty 63B (Power Generation and Wheel Vehicle Mechanic).

3.  The facts and circumstances of the applicant's discharge proceedings are not in the available records; however, a DA Form 4126-R, dated 26 June 1980, shows the applicant accepted nonjudicial punishment under the Uniform Code of Military Justice (UCMJ) on two occasions for violation of Article 91:

* Disrespect, 15 November 1979
* Disobeying a lawful order, 15 May 1980

4.  A DA Form 268 (Report for Suspension of Favorable Action), dated 11 March 1981, states the applicant was pending trial by court-martial for violation of Article 134.

5.  On 29 May 1981, he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  His records show he was credited with 2 years, 4 months, and 25 days of active service.

6.  The Army Discharge Review Board denied his request for an upgrade of his discharge on 23 August 1982.  The evaluation section of the case report shows the applicant was arrested for speeding, was under the influence of alcohol, and 80 grams of marijuana was found in his car.  He then attempted to bribe the arresting military police officer.   

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

	a.  Chapter 10 of that regulation 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 requests an upgrade of his under other than honorable conditions discharge to an honorable or general discharge.

2.  The applicant's record is void of the complete facts and circumstances that led to his discharge.  However, his record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  

3.  The applicant contends he was young and immature at the time of his service.    Records show the applicant was almost 20 years of age at the time he enlisted and about 22 at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.
4.  His DD Form 214 shows he was discharged on 29 May 1981 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with an under other than honorable conditions discharge.  Discharges under the provisions of chapter 10 are voluntary requests.  Therefore, the applicant was required to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  In addition, his request would have included an admission of guilt.

5.  In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service during this term of enlistment.

6.  In view of the above, his request should be denied.

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)                                         AR20110003807





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110003807



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1