IN THE CASE OF:	 

		BOARD DATE:	  11 September 2012

		DOCKET NUMBER:  AR20120002482 


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 under other than honorable conditions discharge.

2.  The applicant states the charges were dismissed.

3.  The applicant provides:

* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* General Court-Martial Order Number 49, issued by Headquarters,
U.S. Army Combined Arms Center, Fort Leavenworth, KS, dated
30 October 1985

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 20 June 1979.  He completed training and he was awarded military occupational specialty 05B (radio operator).

3.  The specific facts and circumstances of his discharge proceedings are not in the available records; however, the applicant's record contains:

	a.  A DA Form 2496 (Disposition Form), dated 26 August 1982, that notified him of his commander's intent to disqualify him permanently from the Personnel Reliability Program (PRP) based on narcotic and drug violations.  The applicant acknowledged receipt of the notification and elected not to make a statement in his behalf or refute his disqualification.

	b.  An undated approved permanent disqualification from the PRP.

	c.  In Item 35 (Record of Assignment) of his DA Form 2-1 (Personnel Qualification Record) an entry that shows on 12 August 1982 he was assigned to the Correctional Holding Detachment, U.S. Disciplinary Barracks, Fort Leavenworth.

	d.  General Court-Martial Orders Number 49, dated 30 October 1985, contains the entry "The accused's application for discharge from the United States Army under the provisions of Chapter 10, AR (Army Regulation) 635-200 was approved on 24 October 1985.  The charges are dismissed.  All rights, privileges, and property of which the accused has been deprived by virtue of the finding of guilty and the sentence so set aside will be restored."

4.  On 10 January 1986, the applicant was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He completed 6 years, 6 months, and 21 days of creditable active service.  Item 18 (Remarks) of his DD Form 214 shows he was in an excess leave status from 5 May 1983 to 10 January 1986 and retained in service 2,301 days for the convenience of the Government.

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

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

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant requests an upgrade of his under other than honorable conditions discharge to honorable.

2.  His DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial, with an under other than honorable conditions discharge.

3.  Although the applicant's record is void of the specific facts and circumstances surrounding his discharge, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of Army Regulation
635-200, chapter 10 are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

4.  In the absence of evidence to the contrary it is presumed his separation processing was administratively correct and in accordance with applicable regulations.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service during this term of enlistment.

5.  As to his contention that the charges were dismissed, the evidence of record indicates court-martial charges were dismissed only so the applicant could receive the administrative, chapter 10 discharge in lieu of having a court-martial record.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a 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)                                         AR20120002482



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ABCMR Record of Proceedings (cont)                                         AR20120002482



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