BOARD DATE:   12 April 2012

		DOCKET NUMBER:  AR20110021548


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 be upgraded from general to honorable and the issuance of a revised DD Form 214 (Certificate of Release or Discharge from Active Duty).

2.  The applicant states he was ill advised by a Judge Advocate captain that if he resigned his commission on 1 March 1985 he would receive an honorable discharge.  He was shocked when he received a general discharge instead.  He would have waited 3 months to submit his resignation upon accruing 4 years of service had he known he would receive a general discharge.  He respectfully requests that the Board upgrade his discharge to honorable.  He states the general discharge carries an unjust stigma that resulted from him serving just 3 months short of his 4 year service obligation based on bad legal advice.  He states he seeks remediation at the mercy of the board.  His military records were stolen from his personal vehicle.

3.  The applicant did not provide any additional documentation.

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 was commissioned as a Regular Army second lieutenant in Field Artillery on 31 May 1981.  He completed the Field Artillery Basic Course and Ranger Training and he was promoted to first lieutenant effective 
27 November 1982. 

3.  His DA Form 2-1 (Personnel Qualification Record) shows in:

	a.  item 9 (Awards, Decorations and Campaigns) Army Service Ribbon, Ranger Tab, Parachutist Badge, and the Army Achievement Medal; and

	b. item 35 (Record of Assignments) he was assigned to Headquarters and Headquarters Company, 1st Battalion (Ranger), 75th Infantry, Hunter Army Airfield, GA, as a FIST (Fire Support Team) Team Chief, from 16 May 1983 thorough 28 February 1985.

4.  On 16 November 1984, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for wrongfully having sexual intercourse with a married woman, not his wife, while the husband, an enlisted Soldier, in the same Ranger Battalion, was in the field.

5.  He received a Relief for Cause Officer Evaluation Report for the period 
20 November 1983 through 13 November 1984.  The senior rater directed the applicant's relief due to off duty conduct:  adultery.  

6.  His records contain a copy of a message from Commander, U.S. Army Military Personnel Center, Alexandria, VA, subject:  Separation.  The message shows in paragraph 1 that the unqualified resignation of (the applicant) was approved under the provisions of chapter 3, Army Regulation 635-120 with a
DD Form 257A (General Discharge Certificate).

6.  The applicant's DD Form 214 shows on 1 March 1985 he was discharged from active duty in the rank of first lieutenant.  He had completed 3 years,
9 months, and 1 day of total active service.

7.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge.

8.  Army Regulation 635-120 implemented the statutory provisions of Title 10, U. S. Code, governing active duty officer resignations and discharges.  Chapter 3 of this regulation prescribes procedures whereby an officer on active duty may tender a resignation, provided that the officer meets all applicable service obligations and is not under investigation or awaiting charges.

9.  Army Regulation 635-100 (Personnel Separation - Officer Personnel) provides: 

   a.  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 officer'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.

   b.  a general discharge under honorable conditions is issued to an officer whose military record is satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  There is no evidence of record showing the applicant was advised that if he resigned his commission he would receive an honorable discharge.  The evidence shows he was discharged as a result of an unqualified resignation.

2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Given the type of serious misconduct recorded in his file (adultery with the wife of an enlisted Soldier from his battalion), the characterization of his separation as general under honorable conditions appears to have been more than generous.

3.  In view of the foregoing, there is no basis for granting the requested relief.



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)                                         AR20100028962



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ABCMR Record of Proceedings (cont)                                      AR20110021548



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