IN THE CASE OF:	 

		BOARD DATE:	  6 June 2013

		DOCKET NUMBER:  AR20120021186 


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:

	a.  He was ordered by the battery commander to inventory a large number of boxes of tools for turn-in.  He took some of the boxes home to inventory.  With little or no training in supply rules and regulations, he was unaware he needed to sign for the tools in order to take them to his quarters on post.

	b.  While away at school, the battery commander sent the military police to his quarters in search of a pair of binoculars that were missing from the arms room.  Upon his return from school he received an Article 15 for inefficiency and did not contest the findings; however, the Article 15 was stopped and a court-martial was ordered.

	c.  The battalion commander offered him a separation under chapter 10 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) and he was advised by his lawyer to take it; however, he did so without the knowledge that he could appeal the decision.  He further claims he did nothing to warrant an other than honorable discharge and he was not given the opportunity to explain his side of the story at a court-martial hearing.

3.  The applicant provides a self-authored statement, DD Form 214 (Certificate of Release or Discharge from Active Duty), and DD Form 214 MC (Report of Separation from Active Duty).

COUNSEL'S REQUEST, STATEMENT AND EVIDENCE:

1.  Although the applicant lists a veterans' specialist as counsel, he did not render a request on the applicant's behalf.

2.  Counsel provides no additional statement.

3.  Counsel 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.  Having prior honorable service in the U.S. Marine Corps, the applicant's record shows he enlisted in the Regular Army on 3 May 1977.  He initially performed duties as a senior sound/flash observer; however, he was later awarded military occupational specialty 76Y (Unit Supply Specialist).  The highest rank/pay grade he attained during his military service was staff sergeant/E-6.  However, he held the rank/grade of private/E-1 at the time of his discharge.

3.  His record contains a DA Form 2496 (Disposition Form) which informed the applicant of his commander's intent to disqualify him from award of the Army Good Conduct Medal due to court-martial.  On 3 April 1986, the applicant acknowledged by signature that he understood the unfavorable information presented and elected not to make a statement.  Subsequently, the applicant was disqualified from receiving the Army Good Conduct Medal and a new period of qualification was established.

4.  The complete facts and circumstances of his discharge are not available for review with this case.  However, his record contains a DD Form 214 which shows he was discharged for the good of the service in lieu of trial by court-martial on 17 April 1986 under the provisions of Army Regulation 635-200, chapter 10, with an under other than honorable conditions character of service.  His DD Form 214 shows he completed 8 years, 11 months, and 15 days of net active service during this period with no lost time.

5.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 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'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.  In view of the foregoing, 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)                                         AR20120021186



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ABCMR Record of Proceedings (cont)                                         AR20120021186



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