IN THE CASE OF:	  

		BOARD DATE:	  1 November 2011

		DOCKET NUMBER:  AR20110009350 


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.

2.  The applicant states he did not have proper counsel.

3.  The applicant provides no additional 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.  His military records show he enlisted in the Regular Army on 22 October 1976.  He completed training and he was awarded the military occupational specialty of radio operator.  

3.  He reenlisted in the Regular Army on 26 July 1979.  The highest rank/grade he held was specialist four/E-4.

4.  The applicant's discharge packet is not contained in his records.  However, his record contains a DD Form 214 that shows on 14 February 1980 he was discharged under the provisions of Army Regulation 635-200, chapter 10, administrative discharge for conduct triable by court-martial.  He was given an under other than honorable conditions discharge.  His DD Form 214 shows he completed 6 months and 19 days of active service during this period.  This form further shows he completed 3 years, 3 months, and 23 days of prior active service.

5.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  The Soldier's written request would include an acknowledgement that the Soldier understood that if his or her request for discharge were accepted, the Soldier could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  They would also acknowledge that they had been advised and understood the possible effects of a discharge under other than honorable conditions; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Veterans Administration; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge that they understood they may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

6.  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.

7.  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.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, the applicant would have voluntarily requested discharge in lieu of a trial by court-martial.

2.  He has provided no evidence to support his claim that he did not have proper counsel.

3.  While the Board does not have his discharge packet, the Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  In the absence of evidence to the contrary, 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.

4.  In view of the foregoing, there is no basis for granting 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 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)                                         AR20110009350



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ABCMR Record of Proceedings (cont)                                         AR20110009350



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