BOARD DATE:	  16 August 2012

		DOCKET NUMBER:  AR20120003288 


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 to a general discharge.

2.  The applicant states:

* he was young, fresh out of high school, and only 17 years of age
* he now has two sons in the Army and he wants to be able to hang his "stuff" on the wall with theirs
* the discharge he received was too harsh
* he did get into a little trouble but he paid for his mistakes through a special court-martial action and an Article 15
* the charges against him were questionable 
* he beat the court-martial action and they gave him 6 months of hard labor with a forfeiture of pay and return to duty
* if the court-martial action had merit, the Army would have discharged him with a bad conduct discharge, not a chapter 10
* he was not aware of his rights

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* License to carry a firearm
* Amateur Radio License


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 was born on 12 March 1963 and at age 17 he enlisted in the Regular Army on 29 January 1981 for a period of 4 years.   

3.  He completed basic combat training at Fort Jackson, SC, and he was subsequently reassigned to Fort Eustis, VA, for completion of advanced individual training. 

4.  On 16 July 1981, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty and dereliction in the performance of his duties.  His punishment consisted of a forfeiture of $116.00 pay and 7 days of correctional custody facility.

5.  On 18 September 1981, he was reported in a confined status at the Fort Meade, MD, stockade, and on 1 December 1981, he was reported in a present for duty status. 

6.  The facts and circumstances surrounding the applicant’s discharge action are not available for review with this case.  However, his record contains the following documents:

	a.  DA Form 268 (Report of Suspension of Favorable Personnel Actions), dated 26 August 1981, that show he was pending a court-martial.

	b.  DA Form 2496 (Disposition Form), dated 17 September 1981, which shows a trial counsel from the Office of the Staff Judge Advocate, Fort Eustis, VA, requested the release of his personnel records and indicated the applicant had been ordered into post-trial confinement at Fort Meade, MD, effective 17 September 1981 by a court-martial. 
	c.  Orders 229-4, issued by Headquarters, U.S. Army Transportation Center, Fort Eustis, VA, on 2 December 1981, reassigning him in the rank of private to the U.S. Army Separation Transfer Point, effective 2 December 1981, for the purpose of separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

	d.  A properly-constituted DD Form 214 that shows he was discharged on 2 December 1981 under the provisions of chapter 10 of Army Regulation 
635-200, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 7 months and 20 days of creditable active service and he had 75 days of lost time.

7.  There is no indication in his records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

8.  He submitted a license to carry a firearm and an Amateur Radio License.

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

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, 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 record is void of the facts and circumstances that led to his voluntary discharge.  However, his record contains a properly-constituted 
DD Form 214 that shows he was discharged on 2 December 1981 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has 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.  With respect to his arguments:

	a.  The applicant was age 17 when he enlisted and age 18 when he committed his offense(s).  However, there is no evidence he was any less mature than other Soldiers who successfully completed their period of service.  

	b.  The fact that he has two sons in the Army is commendable; however, this has no bearing on his own service.  

	c.  Chapter 10 allows a Soldier who does not want to face a court-martial an opportunity to request a voluntary discharge.  It appears the applicant in this case did exactly that.  He could have elected trial by court-martial if he thought he was innocent of the charges that he describes as "questionable."

	d.  His contention that the discharge he received was too harsh lacks merit.  The fact that he was discharged under chapter 10 indicates that court-martial charges were preferred against him.  A general court-martial could have adjudged a dishonorable or a bad conduct discharge while a special court-martial could have adjudged a bad conduct discharge.  Either court could have resulted in a much harsher outcome. 

	e.  He does not provide evidence that shows he was unaware of his rights.  Generally, a Soldier could not request a chapter 10 in lieu of a court-martial unless the Soldier consulted with counsel.  Therefore, it is very unlikely he was unaware of his rights.  

4.  There is no evidence in the available records, nor did he provide documentation, to warrant an upgrade of his discharge.  Furthermore, the ABCMR does not correct records for the purpose of establishing eligibility for entitlements to other programs or benefits. 

5.  Based on his record of indiscipline his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20120003288



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ABCMR Record of Proceedings (cont)                                         AR20120003288



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