IN THE CASE OF:	  

		BOARD DATE:	    3 April 2012

		DOCKET NUMBER:  AR20110020639 


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 his discharge be upgraded.

2.  The applicant states he overcame the mistake he made 30 years ago with drugs and now needs help from the Veterans Affairs Medical Center (VAMC).

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 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's records show he enlisted in the Regular Army on 27 December 1977.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was specialist/E4.  

3.  The available records indicate the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for the offenses indicated:

* on 19 November 1979, for leaving his post
* on 19 February 1980, for failure to go to his appointed place of duty

4.  The applicant's discharge packet is not available.  However, his DD Form 214 shows he was discharged on 9 May 1980 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service, Separation Code "JFS", in lieu of court-martial with a character of service of under conditions other than honorable.  He completed 2 years, 4 months, and 13 days of creditable active military service.

5.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

6.  Army Regulation 635-200 (Personnel Separations) 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.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.


8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's argument his discharge should be upgraded was carefully considered; however, there is insufficient evidence to support his request.

2.  Absent evidence to the contrary, the applicant's request for separation for the good of the service to avoid a trial by court-martial under the provisions of chapter 10 of Army Regulation 635-200 is presumed to have been voluntary,  administratively correct, and in compliance with applicable regulations.

3.  There is no evidence that shows the applicant was not properly and equitably
discharged in accordance with the regulations in effect at the time and that all
requirements of law and regulations were not met or that the rights of the applicant were not fully protected throughout the separation process.   Absent such evidence, regularity must be presumed in this case.

4.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for VA benefits.

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)                                         AR20110020639





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ABCMR Record of Proceedings (cont)                                         AR20110020639



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