IN THE CASE OF:	  

		BOARD DATE:	  6 October 2011

		DOCKET NUMBER:  AR20110006200 


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:

* he understands an upgrade is possible
* his discharge was 28 years ago
* he was a young man with a huge alcohol problem
* he is now 48 years old and can hardly stand himself for having this discharge on his record  

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DA Form 2-1 (Personnel Qualification Record) 

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 was born on 1 January 1963.  He enlisted in the Regular Army (RA) on 
13 March 1980 for a period of 3 years.  He completed his training and was awarded military occupational specialty 05C (Radio Teletype Operator).

3.  On 18 July 1980, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) from 8 July 1980 to 11 July 1980.

4.  On 4 December 1981, NJP was imposed against the applicant for willfully and wrongfully breaking military property and being drunk and disorderly.

5.  On 3 August 1982, he underwent a separation physical examination.  In item 11 (Have you ever had or have you now) of his Standard Form 93 (Report of Medical History), shows he marked "Yes" to hepatitis.  Item 25 (Physician's summary and elaboration of all pertinent data) of this form indicates the applicant had alcoholic hepatitis in April 1981. 

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 13 August 1982 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 2 years, 3 months, and 15 days of creditable active service with 56 days of lost time.

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 he was a young man with a huge alcohol problem.  However, age is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted in the RA, he successfully completed training.  Also, it is acknowledged he reported he had alcoholic hepatitis in April 1981 but there is no evidence he took steps to self-refer for alcohol abuse treatment while in the Army.

2.  He contends his discharge was 28 years ago.  However, the passage of time is normally not a basis for upgrading a discharge.

3.  It appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge during his enlistment in the RA.  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 during his enlistment in the RA.

4.  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 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)                                         AR20110006200



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ABCMR Record of Proceedings (cont)                                         AR20110006200



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