IN THE CASE OF:	  

		BOARD DATE:	  18 April 2013

		DOCKET NUMBER:  AR20120018079 


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 to an honorable discharge.

2.  The applicant states he was injured while serving on active duty and he needs to file for disability.  He further states he served honorably for 6 years.

3.  The applicant provides no 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 22 January 1976.  His records show he completed basic combat and advanced individual training and he was awarded military occupational specialty 36C (Wire Systems Installer/Operator).

3.  On 21 January 1980, the applicant was honorably released from active duty for completion of required service and he was transferred to the U.S. Army Reserve (Reinforcement) to complete his service obligation.
 
4.  On 14 May 1980, the applicant again enlisted in the Regular Army for a period of 4 years beginning in the rank/grade of sergeant/E-5.

5.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on:

* 23 August 1982, for wrongfully possessing marijuana
* 19 March 1984, for possessing a ration control plate and official U.S. identification of another person without consent
* 19 March 1984, for attempting to wrongfully use a ration control plate and official U.S. identification of another person

6.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged for the good of the service in lieu of trial by court-martial on 9 July 1984 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, with a character of service of under other than honorable conditions.  His DD Form 214 shows he was discharged in the rank/grade of private/E-1 and he completed a total of 4 years, 1 month, and 26 days of creditable active service during this period.

7.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  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, the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An under other than honorable conditions discharge was considered appropriate at the time the applicant was discharged.

9.  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.

10.  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 request to upgrade his discharge under other than honorable conditions to an honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that 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 would have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  In the absence of evidence to the contrary, 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.

3.  Notwithstanding the applicant's need to file for disability compensation, this argument alone is not a basis for upgrading a discharge.  Therefore, the applicant is not entitled to 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 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)                                         AR20120018079



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ABCMR Record of Proceedings (cont)                                         AR20120018079



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