IN THE CASE OF:	  

		BOARD DATE:  13 September 2012

		DOCKET NUMBER:  AR20120005695 


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 (UOTHC) discharge.  

2.  The applicant states he has lived with this discharge for many years and has tried to forget.  However, he has learned that the discharge was not his fault and was unjust.  He claims he had an altercation with another Soldier for which he was punished and his record should show no other altercations or negative behavior.  

3.  The applicant provides four third-party character references in support of his request.  

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 3 September 1974.  He was trained in and awarded military occupational specialty (MOS) 54A (Chemical Operations Assistant).  His record shows he was advanced to the rank/grade of private first class (PFC)/E-3 on 27 August 1976, and this is the highest rank/grade he held while on active duty.

3.  The applicant's record documents no acts of valor or significant achievement.  It does reveal a disciplinary history which includes a summary court-martial (SCM) conviction in April 1976 for violating Article 128 of the Uniform Code of Military Justice (UCMJ) by unlawfully striking another Soldier.  The resulting sentence was a forfeiture of $100.00. 

4.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, his record includes a DD Form 214 (Report of Separation from Active Duty) that identifies the authority for his discharge as chapter 10, Army Regulation 635-200 (Personnel Separations) in item 9c (Authority and Reason); the reason for his separation was conduct triable by court-martial.  The DD Form 214 further shows he completed a total of 2 years, 5 months, and 22 days of active military service and that he held the rank of private/E-1 on the date of his discharge.  

5.  There is no evidence of record indicating the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15 year statute of limitations.  

6.  The applicant provides third-party character reference letters from his brother, a colleague, a friend, and his pastor.  All attest to his good character and citizenship and support his request.  

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

	a.  Chapter 10 of that regulation 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.


	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 request that his under other than honorable conditions discharge should be upgraded because it was unjust and based on his post service conduct has been carefully considered.  However, there is insufficient evidence to support this claim.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge 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.  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.  

3.  Although the applicant's post-service conduct is noteworthy, this factor alone is not sufficiently mitigating to support an upgrade of his discharge at this late date.  The under other than honorable conditions discharge the applicant received was normal and appropriate under the regulatory guidance in effect at the time.  Absent any evidence of record or independent evidence provided by the applicant supporting his assertion that his discharge was unjust, there is an insufficient evidentiary basis to support granting the requested 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)                                         AR20120005695



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ABCMR Record of Proceedings (cont)                                         AR20120005695



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