BOARD DATE:	  12 December 2013

		DOCKET NUMBER:  AR20130006609 


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, in effect, his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he has an honorable and a general (i.e., under other than honorable conditions) discharge and he never received a DD Form 214 (Certificate of Release or Discharge from Active Duty).  He would like his discharge upgraded as it has been over 31 years since he was punished.  He has never been able to get a job that required a DD Form 214.  He is humbled as a minister now and has lived with guilt for 31 years.  He was a dumb kid.  He is an acute alcoholic with mental health problems.  He is a true patriot and submerges himself in community service.

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 was born on 30 November 1958.  He enlisted in the Regular Army (RA) on 30 January 1977.  He was honorably discharged on 30 August 1979 for the purpose of immediate reenlistment.  The DD Form 214 he was issued for this period of service is not available for review with this case.

3.  He reenlisted in the RA on 31 August 1979 at the age of 20 years and 9 months and he held military occupational specialty 11B (Infantryman).  He was subsequently assigned to the 1st Battalion, 81st Field Artillery (FA), Germany.

4.  On 19 June 1982, he was notified by his immediate commander that he was taking action to temporarily disqualify him from the Personnel Reliability Program (PRP) for the wrongful possession and use of marijuana and dereliction in the performance of duty. 

5.  On 19 June 1982, he acknowledged receipt of the disqualification from the PRP and elected not to make a statement in his own behalf.

6.  The specific facts and circumstances surrounding his discharge processing are not available for review with this case.  However, his records contain Orders 231-174, dated 19 August 1982, issued by 569th Personnel Service Company (PSC), Germany, reassigning him to the U.S. Army Transfer Point (USATRFPT), Fort Dix, NJ, effective 23 August 1982, for discharge effective 24 August 1982.

7.  On 24 August 1982, the USATRFPT, Fort Dix, NJ, sent a message to the 569th PSC, Germany, requesting information pertaining to the discharge of the applicant.  The message stated the applicant had arrived at Fort Dix, NJ, without the authority for the discharge and without his military records.  

8.  In a telephone conversation between the Commander, 81st FA, Germany, and a staff sergeant with USATRFPT, Fort Dix, NJ, the commander stated the applicant was being discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  The approving authority was Brigadier General Pxxxx, Commander, 1st Infantry Division, Germany, and he approved the discharge on 6 August 1982.

9.  The DD Form 214 the applicant was issued for this period of service shows he was discharged on 10 September 1982, in the rank of private/E-1 under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 3 years and 10 days of net active service during this period of service.  It is unknown if he had any lost time as his DD Form 214 shows he was separated on temporary records.  

10.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A discharge under other than honorable conditions was normally considered appropriate.

12.  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.

13.  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 record is void of the specific facts and circumstances surrounding his discharge.  However, it appears his command preferred court-martial charges against him for an offense or offenses punishable under the Uniform Code of Military Justice (UCM) with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge for the good of the service - in lieu of trial by court-martial. 

2.  It is presumed he voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In the absence of evidence to the contrary, it is also presumed his separation processing was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights and that the type of discharge directed and the reason for separation were appropriate considering the available facts of the case.  

3.  The applicant contends his discharge should be upgraded because he was young at the time of his service and it has been 31 years since his discharge.  Records show that he was almost 24 years of age at the time of his offenses.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  The fact that 31 years have passed since his discharge does not mitigate the fact that he was charged with an offense punishable under the UCMJ with a punitive discharge during his military service.

4.  The available records show he was disqualified from the PRP due to the wrongful possession and use of marijuana and dereliction in the performance of duty.  This and the court-martial charges preferred against him that led to his discharge indicate his service did not meet the standards of acceptable conduct for Army personnel.  In addition, this misconduct would render his service unsatisfactory.  

5.  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)                                         AR20130006609





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130006609



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1