IN THE CASE OF:  

		BOARD DATE:  10 June 2014

		DOCKET NUMBER:  AR20130018052 


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 upgrade of his discharge to general.

2.  The applicant states he was forced to take the undesirable discharge.  He has never been in trouble with the law and he has never been convicted of any crimes.

3.  The applicant provides two character statements and a 20 August 2013 
DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States).

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provided that applications for correction of military records must be filed with 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records 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 19 February 1980.  He held military occupational specialty 63B (Light Vehicle and Power Generator Mechanic).

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he arrived in Germany on or about 27 November 1981.  The highest rank/grade he attained was private PV2/E-2.

4.  His record shows he accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 
16 February 1982 for failing to complete Headstart and failing to obey a lawful order from his superior noncommissioned officer (NCO).

5.  The applicant's discharge processing documentation is not available for review.  His DD Form 214 shows, on 26 January 1983, he was separated with a discharge under other than honorable conditions, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He completed 2 years, 11 months, and 8 days of active duty service. 

6.  The applicant provided two character reference statements:

	a.  Ms. Debra C. M--- states the applicant has supported her as a volunteer, managing and coordinating community meetings and mentoring at-risk teens.  She describes him as a hardworking, top-performing mentor/volunteer professional and an asset to the community.

	b.   Ms. Aamira M----- states the applicant is a mentor, law-abiding citizen and a pillar of the community.  She has witnessed him interact with school age children during the summer months.  He always informs them to stay away from negative activities and that education is important.  They should go to college or into the military.  He also comes to the aid of the elderly, helping them with their bags, walking them across the street and engaging in conversation.  He plays an impressive role with the young, old, and in the community at large.

7.  Army Regulation 635-200 provides the basic authority for the separation of enlisted personnel.

	a.  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 VA 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 furnished to an individual who was discharged for the good of the service.

   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 states 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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The specific facts and circumstances surrounding his discharge are not available for review.  However, his DD Form 214 shows he was administratively discharged under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.

2.  In the absence to evidence to the contrary, the discharge process must be presumed to have been in accordance with applicable law and regulations.

3.  His character reference statements were reviewed; however, they are not sufficiently mitigating to warrant 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 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)                                         AR20100027085



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ABCMR Record of Proceedings (cont)                                         AR20130018052



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