IN THE CASE OF:
BOARD DATE: 27 March 2014
DOCKET NUMBER: AR20130013817
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, from an under other than honorable conditions discharge to an under honorable conditions (general) discharge.
2. The applicant states he made a mistake that over the years he has learned from and regretted.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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 ABCMR to excuse an applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. On 23 July 1970, the applicant was inducted into the Army of the United States. He completed his initial entry training and was awarded military occupational specialty 71B (Clerk Typist). The highest rank/grade he attained during his period of active service was specialist four (SP4)/E-4.
3. His discharge packet is not available for review; however, his record contains a properly-constituted DD Form 214 that shows he was discharged on 29 November 1971, in the rank/grade of private/E-1. His DD Form 214 further shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, in lieu of trial by court-martial, and he was issued an under other than honorable conditions discharge.
4. Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.
a. Paragraph 3-7a of the regulation in effect at the time provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law. The honorable characterization was appropriate when the quality of the members service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would have been clearly inappropriate.
b. Paragraph 3-7b of the regulation in effect at the time provided that a general discharge was a separation from the Army under honorable conditions. When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.
c. Chapter 10 of the regulation in effect at the time provided that a member who had 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 in lieu of trial by court-martial. The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt. Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.
2. The applicants record is void of the facts and circumstances that led to his discharge. However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 29 November 1971, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.
3. The issuance of a discharge under the provisions of Army Regulation 635-200, chapter 10, required the applicant to have requested from the Army voluntarily, willingly, and in writing discharge in lieu of trial by court-martial. It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. The applicant has provided no information that would indicate the contrary. Further, it is presumed that the applicants discharge accurately reflects his overall record of service. Therefore, he is not entitled to an upgrade of his 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) AR20100014558
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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ABCMR Record of Proceedings (cont) AR20130013817
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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
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