BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002876 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states that at the time of his service he truly did not understand life; however, he does now and he has suffered the shame of his discharge for over 30 years.

3.  The applicant provides:

* a self-authored statement
* his DD Form 214 (Certificate of Release or Discharge from Active Duty)
* his Certification of Birth
* his Social Security Card

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 12 March 1979 for a period of 3 years.  He completed his one-station unit training as a light weapons infantryman at Fort Benning, GA and was transferred to Fort Polk, LA for his first and only duty assignment.

3.  During the period 17 December 1979 to 8 July 1981, nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military justice (UCMJ) was imposed against him on five occasions for failing to go at the time prescribed to his appointed place of duty, dereliction of duty, and wrongfully possessing marijuana.

4.  On 28 July 1981, charges were preferred against him for disobeying a lawful order from a superior noncommissioned officer, breaking restriction, and failing to go at the time prescribed to his appointed place of duty.

5.  On 31 July 1981, after consulting with legal counsel, the applicant submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  He indicated he was making the request of his own free will without coercion from anyone and he was aware of the implications attached to his request.  He also admitted he was guilty of the charges against him or of a lesser-included offense that authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged he understood he could receive a discharge under other than honorable conditions and he might be deprived of all benefits as a result of such a discharge.  He further elected to submit a statement in his own behalf wherein he asserted he could not adjust to military life and requested his request for discharge be approved so that he would not go to jail and be separated from his family.

6.  On 6 August 1981, the appropriate authority approved his request for discharge and directed his discharge under other than honorable conditions.

7.  On 13 August 1981, 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.  He completed 2 years, 5 months, and 2 days of creditable active service.


8.  On 25 August 1988, he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 7 March 1989, after reviewing all of the evidence in his case, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request for an upgrade of his discharge.

9.  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's voluntary request for discharge 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 discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.  In doing so he admitted guilt to the charge against him.


3.  The applicant's contentions and supporting documents have been noted; however, they are not sufficiently mitigating to warrant relief when compared to his repeated misconduct.  Therefore, his service simply does not rise to the level of an honorable or a general discharge.

4.  In view of the foregoing, there is no basis for granting the applicant's request4ed relief.

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)                                         AR20120002876



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ABCMR Record of Proceedings (cont)                                         AR20120002876



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