IN THE CASE OF:
BOARD DATE: 22 February 2012
DOCKET NUMBER: AR20110016488
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, in effect, a discharge upgrade.
2. The applicant states he misused funds and was misled to believe he'd be imprisoned for $300.00. He further states he was told his discharge would be upgraded automatically.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant served in the Regular Army from 9 November 1982 through 25 May 1984 when he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial be court-martial.
3. The applicant's chapter 10 discharge packet is not available for review. Limited documents show:
* a bar to reenlistment was requested on 21 March 1984 because of two records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, a poor attitude toward military service.
* a bar to reenlistment was approved on 2 April 1984
* a DA Form 268 (Report of Suspension of Favorable Personnel Actions) was imposed based on proposed court-martial action
4. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade during that board's 15-year statute of limitations.
5. 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.
6. Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:
a. Paragraph 3-7a states that an Honorable Discharge (HD) is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
b. Paragraph 3-7b states that a General Discharge (GD) 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 HD. A characterization of under honorable conditions may be issued only when the reason for the Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests a discharge upgrade.
2. The applicant's separation packet is not available for review; however, his DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200. That means court-martial charges were preferred against him and, after consulting with legal counsel, he requested discharge for the good of the service in lieu of trial by court-martial which, if convicted of the charge(s) against him, could have authorized the imposition of a bad conduct or dishonorable discharge.
3. The US Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant submits an application requesting a change in discharge. In view of the above, there is no basis for granting the applicant's request for an upgrade of his 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) AR20110016488
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20110016488
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