IN THE CASE OF:	  
		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120002579 


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 discharge and reinstatement of his rank/grade.

2.  The applicant states he had a member of his team go on leave for family matters and he failed to return.  That team member called the applicant and stated that he would like to come to his quarters and talk.  The applicant claims that he did not know the team member was back in Germany.  Meanwhile, U.S. Army Criminal Investigation Command agents had set up outside of his quarters. During this time in his career, he did not think he would have had to defend himself or suffer for someone else's error in judgment.  At the time, he also made an error in judgment by not standing up to the charge, which was never proven aside from the member's excuse for not returning to duty in Germany.  He just wants his record cleared and to let it be known that he served his country with honor. 

3.  The applicant did not provide any evidence.

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's records show he enlisted in the Regular Army on 6 January 1977 and held military occupational specialties (MOS) 11C (Indirect Fire Infantryman) and MOS 13F (Fire Support Specialist).

3.  He served through multiple reenlistments in a variety of stateside and overseas assignment and he was promoted to staff sergeant/E-6 on 8 November 1984.  He completed two tours in Germany from July 1980 to July 1982 and August 1987 to September 1990.  He also completed a tour in Korea from December 1984 to December 1985.

4.  He was awarded or authorized the Army Service Ribbon, Army Good Conduct Medal (3rd Award), Army Achievement Medal (3rd Oak Leaf Cluster), Noncommissioned Officer Professional Development Ribbon with Numeral 2, Overseas Service Ribbon (2nd Award), Sharpshooter Marksmanship Qualification Badge with Rifle and Pistol Bars, and Parachutist Badge. 

5.  The complete facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, his record contains:

	a.  An endorsement, dated 18 September 1990, signed by the separation authority, Major General DMM, approving the applicant's request for discharge for the good of the service in lieu of trial by a court-martial in accordance with chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), and directing reduction to the lowest enlisted grade and the issuance of an under other than honorable conditions discharge. 

	b.  Orders 233-25 issued by Headquarters, 257th Personnel Service Company, Composite Team, Germany, dated 18 September 1990, assigning the applicant to the U.S. Army Transition Point, Fort Jackson, SC, for the purpose of ourptocessing, and subsequent discharge from the Army under the provisions of Army Regulation 635-200, effective 25 September 1990.

	c.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged, on 25 September 1990, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  This form also shows he completed 13 years, 8 months, and 20 days of creditable active service and his rank/grade is shown as private/E-1. 

6.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-years statute of limitations.

7.  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.  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.

	a.  Paragraph 1-14 of the regulation in effect at the time stated that when a member was to be discharged under other than honorable conditions, the convening authority would direct an immediate reduction to the lowest enlisted grade.

	b.  Paragraph 3-7a states 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 states 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's record is void of the facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged under other than honorable conditions on 25 September 1990 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  Based on his record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to an honorable or a general discharge.

4.  With respect to his rank/grade, when the separation authority approved the applicant's voluntary discharge in lieu of trial by court-martial, he ordered the applicant's reduction to the lowest enlisted grade as required by regulation.  This grade is correctly shown on the applicant's DD Form 214 and there is no reason to change it.

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)                                         AR20120002579



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ABCMR Record of Proceedings (cont)                                         AR20120002579



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