IN THE CASE OF:	  

		BOARD DATE:  15 November 2012

		DOCKET NUMBER:  AR20120007818 


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 upgrade of his discharge under other than honorable conditions.

2.  The applicant states:

* He was not given the option to address the charges
* He was not given adequate advice
* He was too young 
* It has been 30 years 

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty). 

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 was born on 5 August 1961.  He enlisted in the Regular Army on 6 October 1978 for a period of 3 years.  He completed his training and was awarded military occupational specialty 13F (fire support specialist).

3.  In 1980, nonjudicial punishment was imposed against the applicant on two occasions for:

* Failing to go at the time prescribed to his appointed place of duty
* Failing to go at the time prescribed to his appointed place of duty and being absent without leave (AWOL) from 14 October 1980 to 16 October 1980

4.  His record is void of the specific facts and circumstances surrounding his discharge action.  However, his DD Form 214 shows he was discharged for the good of the service in lieu of trial by court-martial, on 23 October 1981, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed a total of 2 years, 4 months, and 
3 days days of creditable active service with 255 days of lost time.

5.  There is no evidence that shows the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 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.

7.  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.

8.  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 contends he was too young.  However, age is not a sufficiently mitigating factor.  Although he was age 17 when he enlisted, he successfully completed training.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.  

2.  He contends it has been 30 years.  However, the passage of time is normally not a basis for upgrading a discharge.

3.  He also contends he was not given the opportunity to address the charges and he was not given adequate advice.  However, it appears he was charged with the commission of offense(s) punishable under the Uniform Code of Military Justice 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.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.

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

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)                                         AR20120007818





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ABCMR Record of Proceedings (cont)                                         AR20120007818



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