IN THE CASE OF:	 

		BOARD DATE:  8 January 2013

		DOCKET NUMBER:  AR20120010790


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, in effect, an upgrade of his under other than honorable conditions discharge.

2.  The applicant states:

* his discharge characterization was unjust
* he was charged with crimes he did not commit and he was discharged by a process he didn't understand
* he was called to the Judge Advocate General (JAG) office to fill out paperwork – he had no idea what he was supposed to be signing
* the JAG officer advised him to take the chapter 10 discharge because in  6 months it would be upgraded

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* Medical Assisting Diploma, issued by the Medix School – West, Baltimore, MD, dated 31 May 2010
* 2-Day Lead Abatement Worker course completion certificate, issued by Aerosol Monitoring and Analysis, Inc., Hanover, MD, dated 2 December 2008 (2 copies)
* his résumé
* e-mail messages, dated 29 June 2009, 28 May 2011, and 3 May 2012
* Award Notification, Financial Aid Office, The Community College of Baltimore County, dated 4 May 2012
* Award Letter, Office of Student Financial Assistance, Maryland Higher Education Commission, dated 22 May 2012
* Neurology Discharge Worksheet, Johns Hopkins Medicine, dated           29 October 2010 (pages 1 & 2 of 6)
* Clinic Note, Johns Hopkins Medicine, The Johns Hopkins Hospital, dated 7 December 2010
* Notes, The Johns Hopkins Hospital, dated 20 December 2010
* Clinic Note, Johns Hopkins Medicine, The Johns Hopkins Hospital, dated 21 December 2010
* Clinic Note, Johns Hopkins Medicine, The Johns Hopkins Hospital, dated 28 December 2010
* Notes, Surgical Pathology, The Johns Hopkins Hospital, dated 13 January 2011

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Counsel requests, in effect, upgrade of the applicant's under other than honorable conditions discharge.

2.  Counsel states:

* the applicant was awarded the Army Service Ribbon, Expert Marksmanship Qualification Badge with Grenade Bar, and the Marksman Marksmanship Qualification Badge with Rifle Bar (M-16)
* the applicant was discharged in November 1981 and contends he was told his discharge would be upgraded within 6 months
* the applicant has suffered for over 30 years because of his discharge
* he has attended numerous school and certification courses to better himself since his discharge
* he has learned his life lessons and now, with significant medical issues, would benefit significantly from an upgrade in the interests of justice, compassion, and mercy

3.  Counsel provides a similar DD Form 149 (Application for Correction of Military Record Under the Provisions of Title 10, U.S. Code, Section 1552).

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.  On 15 June 1979, the applicant enlisted in the District of Columbia Army National Guard (DCARNG).  On 16 July 1979, he entered active duty for the purpose of completing his initial entry training.  On 14 December 1979, he completed his initial entry training, was awarded military occupational specialty (MOS) 94B (Food Service Specialist), and was honorably released from active duty and returned to the control of the DCARNG.

3.  On 20 October 1980, he enlisted in the Regular Army.  He entered active duty, completed MOS training and was awarded MOS 12B (Combat Engineer).  Upon the completion of MOS training, he was assigned to Company C, 237th Engineer Battalion, Wharton Barracks, Heilbronn, Germany.

4.  On 26 August 1981, court-martial charges were preferred against him for:

* 2 specifications of Charge 1, for violating Article 121 of the Uniform Code of Military Justice (UCMJ); specifically, for the theft of property and currency of 2 fellow Soldiers, on or about 11 July 1981
* 2 specifications of Charge 2, for violating Article 134 of the UCMJ; specifically, for unlawfully entering the barracks rooms of 2 fellow Soldiers, on or about 11 July 1981 

5.  His discharge packet is not available for review; however, his available record contains a DD Form 214 that shows he was administratively discharged on       27 October 1981 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for conduct triable by court-martial, and issued an under other than honorable conditions discharge.  

6.  On or about 3 August 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge.

7.  He provides numerous documents that attest to his personal and professional development following his period of active military service.  He also provides documents that attest to certain medical issues he currently suffers from.

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

   a. 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.

   b. 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 for an upgrade of his Under Other than Honorable Conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

3.  His records indicate he was charged with the commission of an 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.  Therefore, it is presumed in this case he voluntarily requested discharge from the Army in lieu of trial by court-martial.

4.  In the absence of evidence to the contrary, it is presumed his discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service is commensurate with his overall record of military service.

5.  His contention that his discharge was unjust has been noted; however, there is no evidence in the available records, or any evidence provided by the applicant, that supports this contention.

6.  Based on his record of indiscipline, including offenses punishable under the UCMJ, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct also rendered his service unsatisfactory; therefore, he is not entitled to an upgrade of his 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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20120010790



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