BOARD DATE:	  17 October 2013

		DOCKET NUMBER:  AR20130003689 


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 his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states:

* he was given the options to be court-martialed or get out
* since being discharged he has not been in any trouble
* he has worked in the law enforcement community
* he was a young Soldier and committed a young man's mistake
* for the last 30 years he has been a model citizen

3.  The applicant provides:

* three training certificates
* character reference letter
* certificate of no penal record
* résumé
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

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 17 January 1959.  He enlisted in the Regular Army (RA) on 23 March 1977 for a period of 3 years.  He completed his training and was awarded military occupational specialty 11C (indirect fire infantryman).  On 24 September 1979, he was honorably discharged for immediate reenlistment.  He reenlisted on 25 September 1979 for a period of 3 years.

3.  The charge sheet is not available for review.  However, on 24 May 1981, trial by general court-martial was recommended.

4.  On 1 July 1981, he consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 
10.  He acknowledged that by submitting his request for discharge he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request he understood he might be discharged under conditions other than honorable and given an under other than honorable discharge, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of many or all Army benefits, and he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged he might expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.  He elected not to make a statement in his own behalf. 

5.  On 6 July 1981, the unit and intermediate commanders recommended the applicant's request for discharge be denied and that he be court-martialed.  The intermediate commander indicated the applicant was involved in the sale and transfer of drugs. 

6.  On 30 July 1981, the separation authority approved the applicant's voluntary request for discharge and directed the issuance of an under other than honorable conditions discharge.




7.  On 28 August 1981, he was discharged under the provisions of chapter 
10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge.  He completed a total of 4 years, 5 months, and 6 days of creditable active service.  

8.  He provides a character reference letter from a former supervisor/friend who attests:

* he has known the applicant since 1984 when he was employed as a New York City Peace officer under his command
* he has known him to be of good character and integrity
* during his tenure the applicant advanced from the rank of Peace officer to the rank of Peace officer sergeant, a position he held until he left the department

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

10.  Army Regulation 635-200 sets 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 applicant contends he was a young Soldier; however, age is not a sufficiently mitigating factor.  He was 18 years old when he enlisted in the RA and he successfully completed training.  He was 22 years old when trial by 
court-martial was recommended.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military terms of service.

2.  The character reference letter submitted on behalf of the applicant failed to show his discharge was unjust and should be upgraded.

3.  He contends he has not been in any trouble with the law and for the past 
30 years he has been a model citizen.  However, good post-service conduct alone is not a basis for upgrading a discharge.

4.  His voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 
10, was administratively correct and in conformance with applicable regulations.  He had an opportunity to submit a statement wherein he could have voiced his concerns; however, he elected not to do so.

5.  The type of discharge directed and the reasons for separation were therefore appropriate considering all the facts of the case.

6.  His record of service during his last enlistment included serious drug offenses for which general court-martial charges were preferred against him.  As a result, his record of service was not satisfactory and did not meet the standards of acceptable conduct and performance of duty for Army personnel.

7.  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)                                         AR20130003689





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ABCMR Record of Proceedings (cont)                                         AR20130003689



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