IN THE CASE OF:	  

		BOARD DATE:  13 March 2012

		DOCKET NUMBER:  AR20110018245 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he desires an upgrade of his discharge in order to obtain Department of Veterans Affairs (VA) benefits.

3.  The applicant provides a letter from a psychiatric clinic, a letter from a Crisis Respite Program and 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 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 at the age of 18 on 8 July 1977 for a period of 4 years.  He completed his training and was transferred to Fort Campbell, Kentucky for his first duty assignment.

3.  On 8 August 1978 he was convicted pursuant to his plea by a General Court-Martial of setting fire to barracks that were inhabited.  He was sentenced to confinement at hard labor for 9 months, reduction to the pay grade of E-1 and a bad conduct discharge (BCD).  The convening authority approved the sentence; however, he suspended that portion of the sentence pertaining to confinement at hard labor for more than 6 months for a period of 6 months unless sooner vacated.  The applicant was transferred to Fort Leavenworth, Kansas to serve his confinement.  He was subsequently transferred to Fort Dix, New Jersey for assignment as a helicopter repairman.

4.  On 14 May 1979, after the findings and recommendation of his General Court-martial had been affirmed, that portion of his sentence to a BCD was suspended for a period of 3 months and unless sooner vacated was remitted.

5.  On 11 August 1980 he was convicted by a summary court-martial of being absent without leave (AWOL) from 26 to 28 May 1980, from 2 July to 7 July 1980 and two specifications of failure to go to his place of duty .

6.  The facts and circumstances surrounding his administrative discharge are not present in the available records because they were loaned to the Department of Veterans Affairs in Reno, Nevada in 1989.  However, his records do show that he was AWOL from 30 April to 2 May 1981 and from 15 May to 16 May 1981.

7.  His records also contain a duly authenticated DD Form 214 signed by the applicant which shows that on 24 September 1981 he was discharged under other than honorable conditions under the provisions of Army Regulation       635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years, 9 months and 24 days of active service and had 142 days of lost time due to AWOL and imprisonment. 

8.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

10.  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.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations, with no violations of any of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge.  In doing so he admitted guilt to the charges against him.
 
3.  The applicant's contentions and supporting documents have been noted and they are not sufficiently mitigating to warrant relief under the circumstances.  Additionally, the Board does not upgrade discharges solely for the purpose of qualifying individuals for benefits.  Given his undistinguished record of service and repeated acts of misconduct, his service simply does not rise to the level of under honorable conditions.

4.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant his 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)                                         AR20110018245





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ABCMR Record of Proceedings (cont)                                         AR20110018245



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