IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110013200 


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 condition discharge.

2.  The applicant states he had asked for a DNA test to prove he did not commit the crime but his captain would not listen to him.  Instead the applicant was told to sign the DA Forms and leave it at that.  The applicant also stated he was too young then to know better and now requests his discharge be reversed.

3.  The applicant does not provide any additional documents.

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 (RA) on 1 August 1979 for a period of 3 years at the age of 18 years, 4 months, and 27 days.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.

3.  On 28 September 1980, the applicant's commander signed a Fort Campbell (FC) Form 890 (Pretrial Confinement Check List) pertaining to the applicant.  This form shows he:

	a.  accepted three nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order on two occasions and being disrespectful to a noncommissioned officer (NCO) on two occasions.

	b.  was convicted by a summary court-martial of disobeying a lawful order and being disrespectful to an NCO; and

	c.  pending court-martial charges for attempted forceable sodomy, aggravated assault, and indecent assault with intent to commit sodomy.

4.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  The record does contain a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 6 November 1980 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.  It further shows he received an under other than honorable conditions discharge.  He completed 1 year, 3 months, and 6 days of creditable active service.

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

	a.  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 3-7a 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 under honorable conditions 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 contentions were carefully considered and found to be insufficient in merit.  There is no evidence and the applicant did not produce any evidence in support of his allegations.

2.  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 offenses punishable under the 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 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.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

3.  The applicant's DD Form 214 shows 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.  The DD Form 214 also shows he served only
1 year, 3 months, and 6 days of creditable active service.

4.  The evidence of record show the applicant was 19 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any 
less mature than other Soldiers of the same age who successfully completed military service.  Therefore, the applicant's overall quality of service was not satisfactory.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief for an honorable or a general discharge.
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)                                         AR20110013200



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ABCMR Record of Proceedings (cont)                                         AR20110013200



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