BOARD DATE:	22 October 2013  

		DOCKET NUMBER:  AR20130004272 


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 a general or an honorable discharge. 

2.  The applicant states he is sorry for his actions and he asks to be given a second chance because he is interested in joining the military. 

3.  The applicant did not provide any 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's records show he enlisted in the Regular Army on 15 January 2003 and held military occupational specialty 11B (Infantryman).  He completed 
1 year and 28 days of foreign service during which he served in Iraq from 12 February to 21 July 2004. 

3.  He was awarded or authorized the National Defense Service Medal, Army Service Ribbon, Global War on Terrorism Service Medal, and Global War on Terrorism Expeditionary Medal. 

4.  The complete facts and circumstances surrounding the applicant's discharge processing are not available for review with this case.  However, his record contains:

	a.  A memorandum, dated 16 July 2004, signed by the Commanding General, 1st Infantry Division, Germany, approving the applicant's request for voluntary discharge from the Army under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial with the issuance of an under other than honorable conditions discharge and reduction to the lowest enlisted grade.  

	b.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged, on 28 July 2004, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  This form also shows he completed 1 year, 6 months, and 14 days of creditable active service and his rank/grade is shown as private/E-1. 

5.  On 10 February 2006, the Army Discharge Review Board denied his petition to change his characterization of service and reason for discharge. 

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.

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 record is void of the facts and circumstances that led to his discharge action.  However, his record contains a DD Form 214 that shows he was discharged on 28 July 2004 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of trial by court-martial with an under other than honorable conditions characterization of service.

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.  The applicant provided no information that would indicate the contrary.  Further, it is presumed that the applicant's discharge accurately reflects his overall record of service.

3.  He was discharged in lieu of trial by court-martial; therefore, his service does not appear to have met 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 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)                                         AR20130004272



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ABCMR Record of Proceedings (cont)                                         AR20130004272



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