IN THE CASE OF:	  

		BOARD DATE:	  5 May 2015

		DOCKET NUMBER:  AR20140017349 


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 under other than honorable conditions discharge.

2.  The applicant states he was young and he had a drinking problem.  He was not offered treatment. 

3.  The applicant does not provide any documentary evidence in support of his application. 

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's records show he was born in March 1961 and he enlisted in the Regular Army at 20 years of age on 18 November 1981.  He held military occupational specialty 13E (Cannon Fire Direction Specialist).
3.  He served in Germany from on or about 15 May 1982 to on or about 10 November 1983.  He was awarded or authorized the Army Service Ribbon, Sharpshooter Marksmanship Qualification Badge with Rifle Bar, and Expert Marksmanship Qualification Badge with Grenade Bar. 

4.  His records show he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on: 

* 15 December 1982, for disobeying a lawful order to lay his equipment for inspection 
* 5 January 1983, for disobeying a lawful order from a superior commissioned officer, disobeying a lawful order from his superior noncommissioned officer, and willfully damaging military property 

5.  The complete facts and circumstances surrounding the applicant’s discharge action are not available for review with this case.  However, his record contains the following documents:

	a.  Orders 34-57, issued by Headquarters, 259th Personnel Service Company, on 10 February 1983, reassigning him in the rank of private to the U.S. Army Transition Center, Fort Dix, NJ, on or about 10 February 1983, for separation outprocessing. 

	b.  Orders 053-402, issued by Headquarters, U.S. Army Training Center, Fort Dix, on 22 February 1983, ordering his discharge from the Army effective 22 February 1983. 

	c.  A DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was discharged on 22 February 1983 under the under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 1 year, 3 months, and 5 days of creditable active service.

6.  There is no indication in his records 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 of that regulation 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.  The applicant’s record is void of the facts and circumstances that led to his voluntary discharge.  However, his record contains a DD Form 214 that shows he was discharged on 22 February 1983 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

2.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service.

3.  The applicant was 20 years of age at the time of his enlistment and presumed to have been 21 years of age at the time he committed the offense that led to his discharge.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligations.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of indiscipline were the result of his age.

4.  There is no evidence in the available records, nor did he provide documentation, to warrant an upgrade of his discharge.  Based on his available record, his service is presumed not to have met the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, there is insufficient evidence to upgrade his discharge to 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)                                         AR20140017349





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ABCMR Record of Proceedings (cont)                                         AR20140017349



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