BOARD DATE:	  3 July 2012

		DOCKET NUMBER:  AR20120000967 


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

2.  The applicant states he was falsely accused of the rape of a Korean woman. He never got a trial.  He was told that after one year his discharge would automatically revert to an honorable discharge.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 28 July 1982.

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 29 May 1979 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 57E (Laundry and Bath Specialist).

3.  On 9 February 1981, he was assigned to the 348th Supply and Service Company in the Republic of Korea.

4.  On 17 March 1981, he accepted non-judicial punishment for being absent from his appointed place of duty.

5.  A message, date time group 250210Z May 82, from the 194th Maintenance Battalion, requested the applicant be retained in the command for 30 days past the expiration of his term of service.  He was pending court-martial action for wrongfully having in his possession a forged letter of authorization (LOA).

6.  On 28 July 1982, he was discharged by reason of conduct triable by court-martial under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations).  He completed 3 years and 2 months of active service that was characterized as under other than honorable conditions.

7.  The facts and circumstances pertaining to the applicant’s discharge are not on file.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  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.

	b.  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, or 
is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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.  

9.  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.  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.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  Although he contends he was falsely accused of rape, there is no evidence of such an accusation.  According to the message from the 194th Maintenance Battalion, he was pending court-martial action for having a forged LOA.

3.  Although the applicant's separation packet was not available, in order for him to be discharged under the provisions of Army Regulation 635-200,
chapter 10, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have been required to consult with defense counsel and to have voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, he had to admit he was guilty of the offenses he was charged with and acknowledged that he could receive an under other than honorable conditions discharge.

4.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate.

5.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable or general 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)                                         AR20120000967



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ABCMR Record of Proceedings (cont)                                         AR20120000967



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