IN THE CASE OF:	  

		BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110008633 


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 upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states:

	a.  he won a simple bet made with another specialist four (SP4)/E-4 over which team would win a football game;

	b.  two weeks later, he and the SP4 agreed he would receive his winnings on the next pay day;

	c.  later that day, having witnessed a fight in the barracks between the SP4 and two other Soldiers, he reported the fight to the charge of quarters (CQ), and while the CQ called the military police, he attempted to break it up;

	d.  when questioned by the MPs regarding the fight, the SP4 reported the details of the bet between them, and he was arrested for extortion and held for several months;

	e.  he was told he could receive a 12-year sentence and he could not take a chance on going to court because he had a new wife and baby;

	f.  his military attorney told him he could get out the Army and be with his family if he signed the papers;

	g.  once everything was finalized he received an under other than honorable conditions discharge;

	h.  he was dedicated to the Army, never got into trouble, attained the rank/grade of sergeant (SGT)/E-5, received many letters of recommendation, and he would have retired if he had not tried to break up the fight; and

	i.  his employment history, resident locations, volunteer history, church affiliation, and various social club memberships he's joined since his discharge and requests his under other than honorable conditions discharge of 1983 be overturned.

3.  The applicant provides:

* an Army Discharge Review Board (ADRB) letter, dated 2 July1998 
* two self-authored statements, dated 18 April 2011
* a Glennville Fire Department Incident Report, dated 20 March 2001
* a National Personnel Records Center letter, dated 13 April 2011
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* a National Archives and Records Administration (NA) Form 13036 (Certification of Military Service), dated 13 April 2011
* his Honorable Discharge Certificate, dated 26 May 1981

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 initially enlisted in the Regular Army (RA) on 27 June 1978.  He completed training and he was awarded military occupational specialty 76V (storage specialist).  He served until he was discharged on 26 May 1981 for the purpose of immediate reenlistment.  His record includes an honorable discharge certificate for this period of service.

3.  On 27 May 1981, he immediately reenlisted in the RA.

4.  The applicant's record shows he was advanced to SP4/E-4 on 1 June 1980, and this is the highest rank/grade he attained while serving on active duty.  It also shows he earned the following awards:

* Army Good Conduct Medal (1st Award)
* Army Service Ribbon

5.  A DA Form 2800 (Criminal Investigation Division (CID) Report of Investigation) (final report), dated 11 March 1983, shows the applicant was charged with the offense of extortion.

6.  The applicant's OMPF is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court martial.

7.  The applicant's DD Form 214 also confirms he was discharged on 18 April 1983, after completing 4 years, 9 months, and 22 days of creditable active service.  It also confirms he received an under other than honorable conditions discharge.

8.  On 2 July 1998, after having carefully reviewed the applicant’s record and the issues he presented, the Army Discharge Review Board concluded his discharge was proper and equitable, and voted to deny his request for an upgrade.

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

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 3-7b 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 record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  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 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.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service [during his second enlistment].

2.  Lacking evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is further presumed the under other than honorable conditions discharge was appropriate considering the offense for which he was discharged and his overall quality of his service.

3.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20110008633



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ABCMR Record of Proceedings (cont)                                         AR20110008633



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