BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120007640 


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 never really got to tell what brought about the situation surrounding him and what happened.  His lawyer only saw him once and explained what his options were.  He was in confinement for only 30 days.

3.  The applicant did not provide any additional 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 enlisted in the Regular Army on 31 January 1979 for a period of 3 years.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He served in Germany from 1 June to
14 September 1979.

3.  On 14 April 1979, while in training, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order from a noncommissioned officer.

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

	a.  a copy of an endorsement, dated 17 September 1979, to Order 250-10, issued by Headquarters, U.S. Army Regional Personnel Center, Giessen, Germany, on 7 September 1979, ordering his discharge effective 21 June 1979; and

	b.  a Fort Jackson, SC, Form Letter (FL), Subject: Reason for Separation, dated 17 September 1979, that shows the applicant requested a separate document explaining the narrative reason for his separation.  On this form is the reason for his separation from active duty on 17 September 1979 that indicates "ADMINISTRATIVE DISCHARGE CONDUCT TRIABLE BY COURT-MARTIAL."  The regulatory or statutory authority is listed as "CHAPTER 10, ARMY REGULATION 635-200 (Personnel Separations - Enlisted Personnel)" and the reenlistment eligibility is shown as "INELIGIBLE FOR ENLISTMENT UNLESS A WAIVER IS GRANTED."

	c.  A DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 17 September 1979 under the provisions of Army Regulation 635-200, chapter 10, with an Under Other Than Honorable Conditions Discharge Certificate.  It shows he was assigned a separation program designator (SPD) code of JFS.  This form also shows he completed 7 months and 17 days of total active service.

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

6.  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.  

7.  Army Regulation 635-5-1 (SPD Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It states the SPD code JFS is the appropriate code to assign to Soldiers separated under the provisions of Army Regulation 635-200, chapter 10, by reason of "Administrative Discharge Conduct Triable by Court-Martial."

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a DD Form 214 that shows he was discharged on 17 September 1979 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions discharge.

2.  It appears 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.  In doing so, he would have admitted guilt and waived his opportunity to appear before a 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.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.
3.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20120007640



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ABCMR Record of Proceedings (cont)                                         AR20120007640



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