IN THE CASE OF:	   

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110008157 


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 an honorable discharge.

2.  The applicant states while he was overseas, his wife was dying. The military police told him "the best way out of this is to take an other than honorable conditions discharge" so that he could get home right away.  He didn't know any better, so he requested a discharge.  He adds that he was never in any trouble during his military service and he was "not himself" at the time.

3.  The applicant provides no additional documentary evidence in support of his application.

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 had prior honorable active duty enlisted service from 1 March 1974 through 20 August 1980.

3.  The applicant reenlisted in the Regular Army (RA) on 21 August 1980 for a period of 6 years.

4.  The applicant's military personnel records show he served overseas in Germany from 28 June 1979 through 18 June 1981.

5.  The applicant's military personnel records do not contain a copy of his administrative separation packet.

6.  Headquarters, 257th Personnel Service Company [Germany], Orders 164-29, dated 18 June 1981, reduced the applicant from specialist five (E-5) to private
(E-1), effective 16 June 1981.

7.  Headquarters, 257th Personnel Service Company [Germany], Orders 164-32, dated 18 June 1981, as amended by Headquarters, 7th Infantry Division, Fort Ord, CA, 1st Indorsement, dated 14 July 1981, reassigned the applicant to the U.S. Army Separation Transfer Point, Fort Ord, California, on 18 June 1981, for discharge from the RA, effective 17 July 1981, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) with an Other Than Honorable Discharge Certificate.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows the applicant entered active duty this period on 21 August 1980 and he was discharged for the good of the service in lieu of trial by court-martial on 17 July 1981 in accordance with Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He completed 10 months and 27 days of net active service during this period.  

9.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an 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.

	a.  Chapter 10 provides that a member who 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.  The individual's request for discharge will include a statement that he was not subjected to coercion with respect to his request for discharge.  The individual will also acknowledge that he was guilty of the charge(s) against him or of a lesser-included offense(s) contained therein which also authorized the imposition of a bad conduct or dishonorable discharge.

	    (1)  The individual will be afforded the opportunity to consult with counsel and be advised that he might:

* be discharged under other than honorable conditions
* be deprived of many or all Army benefits
* be ineligible for many or all benefits administered by the Veterans Administration
* be deprived of his rights and benefits as a veteran under both Federal and State laws
* expect to encounter substantial prejudice in civilian life if he was issued an Under Other Than Honorable Discharge Certificate

       (2)  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  If an under other than honorable conditions discharge is issued, the Soldier will be reduced to private (E-1).

   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.  Chapter 3, paragraph 3-7b, provides that a general discharge under honorable conditions is issued to a Soldier whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



DISCUSSION AND CONCLUSIONS:

1.  Despite the absence of the applicant's administrative separation packet, the applicant acknowledges he voluntarily accepted a discharge under other than honorable conditions.

2.  The applicant's DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial, with service characterized as under other than honorable conditions.

3.  The regulations governing the Board's operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  The applicant has not provided such evidence.  Therefore, in the absence of evidence to the contrary, the type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  The evidence of record indicates the applicant requested discharge for the good of the service in lieu of trial by court-martial and he completed less than
1 year of his 6-year enlistment obligation.  Thus, it is concluded the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable discharge.  Moreover, it is further concluded that the applicant's overall quality of service was not satisfactory and he is not entitled to a general discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's 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 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)                                         AR20110008157



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ABCMR Record of Proceedings (cont)                                         AR20110008157



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