IN THE CASE OF:	  

		BOARD DATE:	  23 April 2015

		DOCKET NUMBER:  AR20140015725 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that his discharge should be upgraded to a general discharge because he did not commit a crime.  He goes on to state that his commander and he had personal difficulties.  He also states that his character was proven by his award of the Army Achievement Medal (AAM) and Good Conduct Medal and the fact that he had previously received an honorable discharge.

3.  The applicant provides copies of his DD Form 214, AAM Certificate, Honorable Discharge Certificate, and three character references.

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.  On 12 February 1987, the applicant enlisted in the Regular Army for a period of 3 years and training as a combat engineer.  He completed one-station unit training at Fort Leonard Wood, Missouri and he was transferred to Germany for his first duty assignment.

3.  On 15 November 1989, he was honorably discharged for the purpose of immediate reenlistment.  On 16 November 1989, he reenlisted for a period of 
5 years and a selective reenlistment bonus.

4.  On 30 May 1990, he departed Germany for an assignment at Fort Campbell, Kentucky.  He deployed to Southwest Asia from 19 October 1990 to 12 April 1991.  He was transferred to Fort Hood, Texas on 19 June 1992.

5.  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 (VA) in New Orleans, Louisiana in 1995.  However, his records do contain a duly-authenticated DD Form 214 which shows, on 9 December 1992, the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), for the good of the service-in lieu of trial by court-martial, with an under other than honorable conditions discharge.  He completed 5 years, 9 months, and 28 days of active service.  

6.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  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 was considered appropriate at the time.


	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.  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 the type of discharge directed and the reasons were appropriate under the circumstances.

2.  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.

3.  The applicant's contentions and supporting documents have been noted; however, without knowing the facts and circumstances that led to his discharge, it would not be appropriate to upgrade what appears to be an appropriate characterization of his service, especially since he had to have committed an offense punishable by a punitive discharge in order to apply for such a discharge.

4.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant 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)                                         AR20140015725



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ABCMR Record of Proceedings (cont)                                         AR20140015725



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