IN THE CASE OF:	   

		BOARD DATE:	  27 June 2013

		DOCKET NUMBER:  AR20120022201 


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.  He states would like his discharge upgraded so he can receive benefits.  He was told when he separated from the service that his discharge would automatically be upgraded to honorable.  He has been separated from the Army for over 30 years.  He asks the Board to consider that he served two terms.  In 1985, he was 23 years of age.  Now he is 55 years of age.  He asks that his age be taken into consideration.

3.  He 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 was born on 9 September 1957.

3.  On 9 September 1977, he enlisted in the Regular Army.  On 29 April 1981, he reenlisted.

4.  On 8 February 1984, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice, for going from his appointed place of duty without authority on or about 2 February 1984.

5.  The complete facts and circumstances of the applicant's discharge processing are not included in the available records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged for the good of the service in lieu of trial by court-martial on 29 April 1985 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  His service was characterized as under other than honorable conditions.

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

7.  Army Regulation 635-200 forth the basic authority for the 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 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.

   c.  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 Army does not have, nor has it ever had, a policy of automatically upgrading properly-issued discharges.

2.  The ABCMR does not grant requests for discharge upgrades solely for the purpose of making an applicant eligible for benefits.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  In the absence of documentary evidence to the contrary, it is presumed that he was charged with an offense for which the authorized punishment included a punitive discharge, that all requirements of law and regulation were met, and that his rights were fully protected throughout the separation process.

4.  He asks that his age be considered.  While it is unclear whether he means his age at the time he served or his age now, neither is a mitigating factor in this case.

	a.  His record shows he was 27 years of age when he was discharged.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.

	b.  He states he is now 55 years of age and that he has been separated for over 30 years (actually 28 years).  The passage of time is not a basis for changing the characterization of a former Soldier's service.

5.  His voluntary request for discharge in lieu of trial by court-martial would have included his admission of guilt to an offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he 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)                                         AR20120022201



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ABCMR Record of Proceedings (cont)                                         AR20120022201



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