BOARD DATE:	  21 August 2014

		DOCKET NUMBER:  AR20130021527 


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 that his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states:

	a.  He was very young at the time and he was given wrong information.  

	b.  His punishment was too harsh because Texas was a very prejudiced and unjust state.  

	c.  Due to the injustice he was given, his life has been difficult.  He has been homeless and he is in bad health.

	d.  He was told his discharge would automatically change to honorable after 10 years. 

	e.  He gave up his life to protect this country and he served in the Korean demilitarized zone and in other places.  

	f.  He was ordered to serve and protect to the best of his abilities and today he is still a Soldier in his heart and he will die with the thought embedded in him.  

	g.  He is 55 years old and if he was called to serve his country he would proudly do it even with his illness.  

	h.  He is a proud American who still stands tall and keeps his eye in the sky.  

	i.  Although his discharge says one thing, he served his country and he is a Vietnam veteran.  

3.  The applicant did not provide 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 21 February 1958.  He enlisted in the Regular Army on 3 August 1976 and he was awarded military occupational specialty 95B (Military Police) upon completion of initial entry training.  

3.  He accepted nonjudicial (NJP) punishment on:

	a.  24 August 1976 for sleeping while posted as a guard;

	b.  20 October 1977 for being absent from his place of duty without authority and for being derelict in the performance of his duties by negligently failing to maintain the security on material and facilities at a supply point;

	c.  26 June 1978 for failing to go at the time prescribed to his appointed place of duty; and

	d.  29 September 1978 for being derelict in the performance of his duties by negligently failing to perform his prescribed military police duties by sleeping on the job.

4.  His records are void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  His records do contain DD Form 214 (Report of Separation from Active Duty) which identifies the authority and reason for his separation.

5.  His DD Form 214 shows he was discharged on 12 January 1979 in the rank/grade of private/E-1 after completing 2 years, 5 months, and 10 days of active service.  It also shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 
10, due to conduct triable by court-martial and his service characterized as under other than honorable conditions.

6.  There is no evidence indicating he applied to the Army Discharge Review Board for an upgrade of his discharge.  

7.  Army Regulation 635-200 sets forth 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 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, a discharge under other than honorable conditions is normally considered appropriate.

	b.  Paragraph 3-7a states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his under other than honorable conditions discharge has been carefully considered.

2.  He contends that he was young; however, age is not a mitigating factor.  He completed initial entry training and he had over 2 years of active service which shows he was mature enough to serve.  Additionally, there is no evidence indicating he was any less mature than other Soldiers of the same age who successfully completed military service.

3.  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 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.

4.  The applicant's arguments were noted; however, he has failed to show that his discharge and/or the characterization of service he received were in error or unjust.  As a result, there is no basis for granting him 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)                                         AR20130021527



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ABCMR Record of Proceedings (cont)                                         AR20130021527



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