BOARD DATE: 16 April 2014
DOCKET NUMBER: AR20130014423
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 general under honorable conditions.
2. The applicant states he was wrongfully accused of a crime and given the choice of being court-martialed or being discharged. He chose discharge. He also states he was young and uninformed and did not speak to a Judge Advocate General officer.
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 enlisted in the Regular Army on 5 April 1977 for a period of 3 years and assignment to Korea. He completed one-station unit training at Fort Knox, Kentucky, and was transferred to Korea for his first and only duty assignment on 26 July 1977.
3. On 17 April 1978, nonjudicial punishment was imposed against him for two specifications of failing to go to his place of duty.
4. On 17 May 1978, nonjudicial punishment was imposed against him for unlawfully transferring a gas range to a Korean National.
5. The evidence of record shows the applicant was absent without leave (AWOL) during the following periods:
* 20 April 1978 1 day
* 20-26 June 1978 7 days
* 7-8 July 1978 2 days
* 11-12 July 1978 2 days
* 20 July-26 August 1978 38 days
6. The facts and circumstances surrounding the applicant's administrative discharge are not present in the available records as they were loaned to the Department of Veterans Affairs in Roanoke, Virginia, in 1998. However, his records do contain a duly-authenticated DD Form 214 which shows the applicant was discharged under other than honorable conditions in lieu of trial by court-martial on 19 October 1978 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10. He completed 1 year, 4 months, and 25 days of active service and he accrued 50 days of lost time due to being AWOL.
7. There is no evidence in the available records to show he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's
15-year statute of limitations.
8. On 7 June 1998, the applicant gave his probation officer permission to obtain copies of his military records.
9. 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, an undesirable discharge was considered appropriate at the time.
b. 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 contentions have been noted; however, they are not sufficiently mitigating to warrant relief under the circumstances given his multiple absences and his otherwise undistinguished record of service. Accordingly, his service does not rise to the level of a general discharge.
2. In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations with no indication of any violations of the applicant's rights and that the type of discharge directed and the reasons were appropriate under the circumstances.
3. After being afforded the opportunity to assert his innocence before a trial by court-martial, he would have voluntarily requested discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record. In doing so, he would have admitted guilt to the charges against him.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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) AR20130014423
3
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ABCMR Record of Proceedings (cont) AR20130014423
2
ARMY BOARD FOR CORRECTION OF MILITARY RECORDS
RECORD OF PROCEEDINGS
1
ARMY | BCMR | CY2001 | 2001064419C070421
The applicant requests correction of military records as stated in the application to the Board and as restated herein. On 22 March 1976, while serving in the pay grade of E-3, nonjudicial punishment (NJP) was imposed against him for being absent without leave from 1 March to 2 March 1976. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.
ARMY | BCMR | CY2004 | 20040010881C070208
Marla J. N. Troup | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. Records show the applicant should have discovered the alleged error or injustice now under consideration on 7 March 1978; therefore, the time for the applicant to...
ARMY | BCMR | CY2012 | 20120020374
The applicant requests an upgrade of his discharge under other than honorable conditions to an honorable discharge. On 5 December 1984 after considering all of the available evidence, the ADRB determined that the applicant's discharge was both proper and equitable under the circumstances and voted unanimously to deny the applicant's request for an upgrade of his discharge. A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him...
ARMY | BCMR | CY2010 | 20100020124
IN THE CASE OF: BOARD DATE: 3 February 2011 DOCKET NUMBER: AR20100020124 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. The applicant requests upgrade of his under other than honorable conditions discharge to a general discharge. Based on this record of indiscipline and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the...
ARMY | BCMR | CY2006 | 20060000082C070205
The applicant states, in effect, that he served 6 years and received an honorable discharge; however, his last discharge was under other than honorable conditions and he desires an upgrade of that discharge because it has been over 20 years since he was discharged. After reviewing all of the evidence and testimony presented, the ADRB determined that his discharge was both proper and equitable under the circumstances and voted unanimously to deny his request on 7 May 1982. The U.S. Court of...
ARMY | BCMR | CY2002 | 2002071160C070402
EVIDENCE OF RECORD : The applicant's military records show: Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for an administrative discharge in lieu of trial by court-martial. DISCUSSION : Considering all the evidence, allegations, and information presented by the applicant, together with the evidence of record, applicable law and...
ARMY | BCMR | CY2012 | 20120010791
The applicant requests an upgrade of his under other than honorable conditions discharge. Contrary to his argument that he requested a general discharge in agreement to no longer pursue action against his commanding officer, the evidence of record shows he was pending court-martial charges and instead of facing the charges, he elected the discharge. Although an honorable or general discharge is authorized with an administrative discharge under chapter 10 of Army Regulation 635-200, his...
ARMY | BCMR | CY2007 | 20070007165C080213
On 29 October 1979, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, with a discharge under other than honorable conditions. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial...
ARMY | BCMR | CY2014 | 20140016511
THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge under other than honorable conditions be upgraded to a general discharge. On 8 March 1977, the appropriate authority (a major general) approved his request for discharge and directed the applicant be given an under other than honorable conditions discharge.
ARMY | BCMR | CY2012 | 20120002830
The applicant requests that his discharge under other than honorable conditions be upgraded to a more favorable discharge. On 19 October 1979, the appropriate authority (a major general) approved his request for discharge and directed that he be discharged under other than honorable conditions. At the time of his application to the Board, the applicant was incarcerated by the Maryland Department of Corrections.