IN THE CASE OF:	  

		BOARD DATE:	  15 May 2012

		DOCKET NUMBER:  AR20110022926 


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 under other than honorable conditions be upgraded.

2.  The applicant states his discharge needs to be upgraded so he can receive education benefits.

3.  The applicant provides no additional evidence in support of his application.

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.  He enlisted in the Regular Army on 11 August 1975 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71B (Clerk-Typist).  He was awarded MOS 71L (Administrative Specialist) on 9 January 1977.  On 7 April 1978, he extended his enlistment for a period of 12 months.

3.  On 16 June 1978, he was assigned to the 117th Adjutant General Detachment, Korea.

4.  There was no charge sheet in his Military Personnel Records Jacket (MPRJ) and his separation processing package was not available for review.

5.  On 14 February 1979, the applicant was discharged under the provisions of 
chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service.  He completed 3 years, 6 months, and 4 days of active service that was characterized as under other than honorable conditions.

6.  There is no record he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

7.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been  clearly inappropriate.

	c.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides 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.  Although his separation package was not available for review by this Board, in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  He would have been required to consult with defense counsel and to have voluntarily and in writing requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offenses he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

2.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process and that the type of discharge and the reason for separation were appropriate.

3.  In view of the above, there is an insufficient basis to change the character of his service to honorable or under honorable conditions.

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)                                         AR20110022926



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ABCMR Record of Proceedings (cont)                                         AR20110022926



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