IN THE CASE OF:	  

		BOARD DATE:  8 November 2012

		DOCKET NUMBER:  AR20120009108 


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.

2.  The applicant states he was told his discharge would be upgraded to an honorable discharge after 7 years. 

3.  The applicant does not provide any evidence to substantiate his case.

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 record shows he enlisted in the Regular Army on 
28 September 1987.  He completed basic combat training and advanced individual training and he was awarded military occupational specialty 45B (Small Arms Repairer).  The highest rank he attained while serving on active duty was specialist/E-4.

3.  The applicant's discharge packet is not available.  However his DD Form 214 shows he was discharged on 2 June 1992 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service with an under other than honorable conditions discharge.  He completed 4 years, 8 months, and 5 days of creditable active military service.

4.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Department of Veterans Affairs benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions would normally be given an individual who was discharged for the good of the Service.  

5.  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.

6.  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 contention that he was told his discharge would be upgraded after 7 years was carefully considered; however, there is insufficient evidence to support his contention.
2.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  Although the applicant's discharge packet is not available it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

3.  Based on the applicant's 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, the applicant is not entitled to either an honorable or a general discharge.

4.  The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in the discharge.  The ABCMR will grant changes if it is determined that either the characterization of service or the reason for discharge was improper or inequitable or both.

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)                                         AR20120009108



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ABCMR Record of Proceedings (cont)                                         AR20120009108



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