IN THE CASE OF:  

		BOARD DATE:  2 July 2014 

		DOCKET NUMBER:  AR20130019756 


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 his DD Form 214 (Certificate of Release or Discharge from Active Duty) be changed to show he received a general discharge.

2.  The applicant states :

	a.  His original DD Form 214 read, "General Under Honorable Conditions."  A Judge Advocate General (JAG) officer informed him he would still be eligible for benefits.  He ordered a new DD Form 214 and it reads much differently.  He was informed that with this discharge he is ineligible for benefits.  He would like his DD Form 214 corrected.

	b.  While assigned in Germany he was falsely accused of dealing "hash."  The U.S. Army Criminal Investigation Command (CID) investigators were really interested in another Soldier, who was his roommate.  The applicant was offered a promotion and transfer to another installation if he agreed to help the CID arrest that Soldier.

	c.  He did not agree to help the CID and hired an attorney.  His attorney called the applicant into his office and stated that his company commander offered him an early out with a general under honorable conditions discharge.  His attorney suggested he accept the offer and avoid a bad conduct discharge (BCD) as he didn't intend to make the military a career and would be eligible for benefits.  He stayed clean, but because of a Soldier who lived in his room he was dragged into a quagmire.  He took the best offer he could get and behaved like an honorable Soldier.
	d.  In the early eighties the military was cracking down on drug use.  During this time he never failed a urine test, but drug use was out of control and the CID was using any tactic, right or wrong, to make their arrests.  "A point had to be made."

	e.  He has moved on with his life, married and has two children.  He has been a patriot all his life.  He is disabled now and could use his promised benefits.

3.  The applicant did not provide any additional supporting documentation.

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 10 February 1981.  He held military occupational specialty 76Y (Unit Supply Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record - Part II) shows he served in Germany from 2 July 1981 through 10 December 1982.  The highest rank/grade he attained was private first class PFC/E-3.

4.  The applicant's discharge processing documentation is not available for review.  His DD Form 214 shows, on 14 December 1982, he was separated with an under other than honorable conditions discharge, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 for the good of the service in lieu of trial by court-martial.  He completed 1 year, 10 months, and 5 days of net active service during the period covered by his DD Form 214.




5.  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 were to ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel were to 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 (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.

6.  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 applicant's record is void of the specific facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of an offense(s) punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

2.  There is no available evidence of record and the applicant did not provide any evidence showing he had previously received a general discharge. 

3.  In view of the foregoing and in the absence of evidence to the contrary, the discharge process must be presumed to have been in accordance with applicable law and regulations. Therefore, there is an insufficient evidentiary basis for granting the applicant's requested relief.

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)                                         AR20130019756



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