IN THE CASE OF:	  

		BOARD DATE:	  10 May 2012

		DOCKET NUMBER:  AR20110022451 


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 an upgrade of his discharge under other than honorable conditions to a general under honorable conditions.

2.  The applicant offers no explanation as to why his discharge should be upgraded.

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 enlisted in the Regular Army on 8 July 1982 for a period of 3 years and training as a multi-channel communication systems operator/mechanic.  He completed basic training at Fort Jackson, South Carolina, and advanced individual training at Fort Gordon, Georgia, before being transferred to Germany on 28 December 1982.

3.  On 31 January 1985, he reenlisted for a period of 4 years, a selective reenlistment bonus, and assignment to Fort Gordon, Georgia.  He departed Germany on 26 June 1985 for assignment to Fort Gordon.

4.  On 11 August 1986, he was issued a general officer letter of reprimand for driving while intoxicated.  On 4 September 1986, nonjudicial punishment was imposed against him for a driving while intoxicated offense on 8 July 1986.

5.  On 5 February 1987, nonjudicial punishment was imposed against him for being intoxicated on duty.

6.  On 3 June 1987, he was again transferred to Germany.

7.  On 3 February 1989, nonjudicial punishment was imposed against him for driving while intoxicated.

8.  The facts and circumstances surrounding his administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Boston, Massachusetts, on 28 September 1989.  However, his records do contain a duly-authenticated DD Form 214 which shows he was discharged in lieu of trial by court-martial under other than honorable conditions on 28 March 1989 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  He completed 6 years, 8 months, and 21 days of active service.

9.  There is no evidence in the applicant's official records showing he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  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 indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  An undesirable discharge was considered appropriate at the time.

11.  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.  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.  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.  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 and having a felony conviction on his record.

3.  The applicant has offered no mitigating circumstances and there is no evidence in the available records that would serve as a basis to upgrade the applicant's 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 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)                                         AR20110022451



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ABCMR Record of Proceedings (cont)                                         AR20110022451



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