IN THE CASE OF:	  

		BOARD DATE:	  18 December 2012

		DOCKET NUMBER:  AR20120010324 


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 (UOTHC) to an honorable discharge.

2.  The applicant states:

   a.  He has prior military service in the U.S. Marine Corps (USMC) (November 1973 to 1976) and received an honorable discharge.  At the advice of his Army counsel, he accepted the administrative discharge from the Army.  His counsel stated that he could use his honorable discharge from the USMC.  At the time, he was young and depended on the advice of his counsel.  Now he realizes he made the wrong decision; the less than honorable discharge has haunted him throughout his life and professionally.

	b.  He requests a discharge upgrade so he can be allowed to retire from his U.S. Postal Service (USPS) job.  His Army service time can be counted toward his USPS time and he can retire in the next couple of years.  Many years ago, he submitted a request to upgrade his discharge for job opportunities, but he never received a reply from the Department of Veterans Affairs.  He has been employed with USPS since 11 March 1989.

	c.  Alcohol and drugs ruled his life at that time.  He is no longer ruled by those things and he is proud of who he has become with the help of God and the Alcohol Anonymous program.  Although he made a mistake, he is and always will be proud to have served in the military.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter of support.

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 military records show he enlisted in the USMC on 8 November 1973.  He was honorably released from active duty on 5 November 1976 and was transferred to the USMC Reserve.

3.  He enlisted in the Regular Army in pay grade E-3 on 8 November 1978 for 4 years.  He completed training and he was awarded military occupational specialty 36C (Wireman).  He was promoted to pay grade E-4 on 22 May 1979.

4.  On 15 November 1979, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for operating a passenger vehicle while drunk in a reckless manner on 5 October 1979.

5.  On 22 April 1981, court-martial charges were preferred against him.

6.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, he provides and his record contains a DD Form 214 that shows he was discharged on 3 July 1981 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.  He completed 2 years, 7 months, and 26 days of net active service during the period under review.  His service was characterized as UOTHC.

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

8.  In a letter of support, dated 22 March 2012, the individual states he has known the applicant for about 30 years and has seen him become a more responsible and mature person since he stopped drinking 15 years ago.  The applicant has been gainfully employed for over 30 years between the railroad and USPS.  The applicant is not the same person who served in the military years ago.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 states 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 UOTHC is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  The honorable characterization is appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be inappropriate.

11.  Army Regulation 635-200, paragraph 3-7b, states 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 evidence of record shows during the applicant's period of service he accepted NJP for driving while drunk in a reckless manner.  On 22 April 1979, court-martial charges were preferred against him.  His record is void of the facts and circumstances which led to his voluntary discharge.  However, his DD Form 214 shows he was discharged on 3 July 1981 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial.

2.  The issuance of a discharge under the provisions of Army Regulation 
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during this period.

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or general discharge.

4.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

5.  His desire to have his discharge upgraded so he can qualify for retirement from the USPS is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for retirement from any other Federal or State 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)                                         AR20120010324



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ABCMR Record of Proceedings (cont)                                         AR20120010324



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