BOARD DATE:	  9 July 2013

		DOCKET NUMBER:  AR20120021898 


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 discharge to an honorable or a general discharge.

2.  The applicant states his discharge was inequitable because it was not based on 20 months of service and 18 months serving on the West German/Czech Border with no other adverse action (his record was clean).  His time and service far outweigh the actions that were taken by the U.S. Army.  At the time he was young and dumb for being in a room in which a crime occurred.  He has had to live with this ordeal for 27 years.  He is ashamed of his discharge.  He comes from a military family, is a military brat, and knows what this means.

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 17 August 1983.  At the time of his enlistment, he was 23 years and 4 months of age.  He completed training and he was awarded military occupational specialty 19D (Calvary Scout).  He served in Germany from 28 December 1983 through 6 September 1985.  He was advanced to pay grade E-3 on 9 May 1985.

3.  In 1985, he was charged with two specifications of wrongfully distributing hashish.

4.  On 25 July 1985, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could be discharged under other than honorable conditions and furnished a bad conduct or dishonorable discharge and the results of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.

5.  On 2 August 1985, the applicant's company and battalion commanders recommended approval of the applicant's discharge with the issuance of an under other than honorable conditions discharge.

6.  On 7 August 1985, the separation authority, a major general, approved the applicant's request for discharge under the provisions of Army Regulation
635-200, chapter 10, and directed the issuance of an under other than honorable conditions discharge and reduction to private (PV1)/E-1.

7.  On 9 September 1985, he was discharged accordingly.  He completed 2 years and 23 days of creditable active service.

8.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's statute of limitations.

9.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.

	a.  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.

	b.  Paragraph 3-7a provides that an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

	c.  Paragraph 3-7b provides that a general discharge was a separation from the Army under honorable condition.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his discharge was carefully considered.  

2.  His contention that his youth and immaturity at the time impacted his ability to serve successfully is without merit.  He was 23 years and 4 months of age at the time of his enlistment and 25 years and 3 months of age at the time of the offense.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.  

3.  He was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  All requirements of law and regulation were met and the 
rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

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

5.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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 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)                                         AR20120021898



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ABCMR Record of Proceedings (cont)                                         AR20120021898



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