BOARD DATE:	  11 September 2014

		DOCKET NUMBER:  AR20130022282 


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 honorable.

2.  The applicant states he believes everyone makes mistakes in life and deserves a second chance.  He is a born-again Christian and he loves and gets along with everyone.  He has put in a lot of years for his country and he has proven to be a better man over the years.  He was close to finishing his tour of duty and it was unfair to give him a less than honorable discharge.  Clemency is warranted because it is an injustice for him to have to continue to suffer the adverse consequences of a bad discharge.  He received three honorable discharges.  His average conduct and efficiency ratings were very good.  He received awards and decorations along with letters of commendation.  He also performed other acts of merit.  His record of promotions shows he was generally a good service member.  He has been a good citizen since his discharge.

3.  The applicant provides:

* DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States)
* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* four character-reference letters
* letter from the Army Review Boards Agency, 10 May 2008
* letter from the Army Review Boards Agency, 27 December 2013
* letter from a Member of Congress, 19 June 2014
* letter from the Army Review Boards Agency, 9 July 2014

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 2 December 1977.  He reenlisted on 28 January 1981 and again on 4 May 1984.

3.  On 5 December 1986, he was assigned to Company C, 32d Signal Battalion, in Germany.  He was promoted to the rank/grade of sergeant/E-5 effective 23 November 1988.

4.  His discharge packet is not available for review.  However, his records contain the following relevant documents:

	a.  A Standard Form 600 (Chronological Record of Medical Care) entry, dated 28 September 1988, shows he returned to the clinic for treatment for a superficial burn on his left arm.  The medical specialist noted he was in confinement in Mannheim, Germany.

	b.  A memorandum from Headquarters, 32d Signal Battalion, dated 1 November 1988, subject:  Suspension of Access to Classified Material for (Applicant), suspended his access to classified information under the provisions of Army Regulation 380-67 (Personnel Security Program), paragraph 2-200.

	c.  378th Personnel Service Company Orders 362-26, dated 27 December 1988, reduced him in rank/grade from sergeant/E-5 to private/E-1 effective 23 November 1988 under the provisions of Army Regulation 600-200 (Enlisted Personnel Management System), paragraph 6-11.

	d.  A 4th endorsement from the Commanding General, Headquarters, V Corps, to a memorandum, subject:  Request for Discharge for the Good of the Service in the Case of (Applicant), approved his request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  The commanding general directed the applicant's reduction to the rank/grade of private/E-1, prompt separation, and that he receive an under other than honorable conditions discharge.  He further stated the criminal charges preferred for trial by court-martial on 5 October 1988 by the Commander, Company C, 32d Signal Battalion, would be dismissed upon the applicant's separation.

5.  On 10 January 1989, the applicant was discharged for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  His DD Form 214 shows he completed 11 years, 1 month, and 9 days of active service.  His service was characterized as under other than honorable conditions.

6.  He provided four character-reference letters attesting to his selflessness and generosity of spirit.

7.  Army Regulation 380-67, paragraph 2-200, in effect at the time, included, but was not limited to, criminal or dishonest conduct and acts of omission or commission that indicate poor judgment, unreliability, or untrustworthiness.

8.  Army Regulation 600-200, paragraph 6-11, provides that when the separation authority determines that a Soldier is to be discharged from the service under other than honorable conditions, he or she will be reduced to the lowest enlisted grade.

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, a discharge under other than honorable conditions is normally considered appropriate.

	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 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.  Although the applicant's discharge packet is not available for review, his records indicate he was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He would have voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  He provided no evidence of procedural errors which would have jeopardized his rights.  As such, it must be presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

3.  The applicant's prior honorable service was noted; however, his discharge accurately reflects his record of service during the period under consideration.

4.  The character-reference letters attesting to his selflessness are insufficient in and of themselves to mitigate the circumstances under which he was discharged.

5.  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 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)                                         AR20130022282



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ABCMR Record of Proceedings (cont)                                         AR20130022282



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