BOARD DATE:	  27 September 2012

		DOCKET NUMBER:  AR20120005433 


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 honorable.

2.  The applicant states he was young and made some mistakes; however, his overall service was good.  He is now 55 years old and is in need of medical benefits.  He adds that a former President of the United States declared that all general and other than honorable discharges were to be upgraded to honorable.

3.  The applicant provides a copy of his California driver's license; social security card; and Social Security Administration documents, dated March 2012, that show he changed his last name from B____ to S____.

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 8 December 1975 for a period of 3 years.  At the time, he was 18 years of age.

3.  On 8 April 1976, the applicant was advanced to private/E-2.  He completed training and was awarded military occupational specialty 11C (Infantry Indirect Fire Crewman).

4.  On 14 April 1976, he deployed to Korea and was assigned to the Combat Support Company, 1st Battalion, 9th Infantry, 2nd Infantry Division.

5.  The applicant was reduced to private/E-1 on 20 September 1976.

6.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) or a copy of his separation packet.

7.  Headquarters, 2nd Infantry Division, Orders 62-29, dated 28 September 1976, reassigned the applicant to the U.S. Army Transfer Point, Oakland Army Base, Oakland, CA, for separation processing on 6 October 1976.  The authority cited in the orders was Army Regulation 635-200 (Enlisted Separations – Enlisted Personnel), chapter 10, with issuance of an Undesirable Discharge Certificate.

8.  Headquarters, Presidio of San Francisco, CA, Orders 68-16, dated 6 October 1976, as amended by Orders 69-2, dated 7 October 1976, discharged the applicant from the Regular Army effective 6 October 1976.

9.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 6 October 1976 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with his service characterized as under other than honorable conditions.  He completed 9 months and 29 days of active service during this period.

10.  A review of the applicant's military personnel records failed to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10 provides that a member who 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, at the time the applicant was discharged an undesirable discharge was normally considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  This 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 applicant's contention that his discharge under other than honorable conditions should be upgraded because he was young and made some mistakes and that a former President of the United States declared that all other than honorable discharges were to be upgraded to honorable was carefully considered.

	a.  Considering that the applicant satisfactorily completed training, was advanced to PV2, and was awarded MOS 11C, his implication that he was immature is not supported by the evidence of record.

	b.  There is no evidence of record and the applicant provides insufficient evidence to support his contention that a former President of the United States declared that all other than honorable discharges would be automatically upgraded.  Moreover, this Board knows of no such executive policy.

2.  The evidence of record indicates the applicant elected to request discharge in lieu of being tried by a court-martial.

3.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge and narrative reason directed appear to have been, and still are, appropriate.

4.  The applicant completed less than 10 months of his 3-year enlistment obligation.

5.  Thus, in view of the foregoing, the applicant's service during the period under review did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.

6.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for veterans' benefits.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.  Additionally, granting veterans' benefits is not within the purview of the ABCMR.  Any questions regarding eligibility for such benefits should be addressed to the Department of Veterans Affairs or appropriate government agency.

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 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)                                         AR20120005433



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ABCMR Record of Proceedings (cont)                                         AR20120005433



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