IN THE CASE OF:	

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110016164 


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 an honorable discharge.

2.  The applicant states:

* he was young and did not know what he was getting into 
* he was not good with authority when he was 18 years old
* it has been 33 years since his discharge 
* he has not been in any trouble since his discharge
* he was employed with General Motors until he got hurt in 1991
* he has been on disability since 1991
* he does not understand the charges 

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 on 19 July 1976.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 52B (Power Generator Equipment Operator/Mechanic).  The highest grade/rank he held was private/E-2.

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was assigned to Headquarters and Headquarters Company, 2nd Battalion, 9th Infantry, 2nd Infantry Division, Korea, from 23 February 1978 to 17 January 1978.

4.  The applicant's discharge packet is not available.  However, his DD Form 214 (Report of Separation from Active Duty) shows he was discharged under other than honorable conditions in lieu of trial by a court-martial on 18 January 1978 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He completed 1 year and 6 months of creditable active military 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 member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

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.



DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances that led to his discharge.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged under other than honorable conditions in lieu of trial by court-martial on 18 January 1978 under the provisions of Army Regulation 
635-200, chapter 10.

2.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  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.  The applicant provided no evidence that would indicate the contrary.  Further, it is presumed the applicant's discharge accurately reflects his overall record of service during his enlistment.

3.  The applicant stated he was 18 years old and did not know what he was getting into.  However, there is no evidence to indicate the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.

4.  There is no evidence of record and the applicant has not provided evidence to show he was not properly and equably discharged in accordance with the regulations in effect at the time and that all requirements of law and regulations were not met or that his rights were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

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 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)                                         AR20110016164



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ABCMR Record of Proceedings (cont)                                         AR20110016164



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