BOARD DATE:	  16 June 2015

		DOCKET NUMBER:  AR20140018239 


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 fully honorable discharge.

2.  The applicant states that he was set up (with a Criminal Investigation Division (CID) officer) by a Soldier who was being discharged and he was kicked out of the Army for selling him two sleeping pills.

3.  The applicant provides copies of his commendatory letters, Certification of Military Service, Certificate of Clearance and/or Security Determination, and the back pages of his evaluation reports. 

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 25 February 1972 for a period of 2 years.  He completed his basic training at Fort Leonard Wood, Missouri and his advanced individual training as a power generator equipment repairer at Fort Belvoir, Virginia before being transferred to Germany on 22 September 1972.

3.  He remained on active duty through a series of continuous reenlistments.  He was promoted to the pay grade of E-5 on 27 March 1975 and completed his tour in Germany on 15 December 1976.  He was transferred to Key West, Florida and remained there until 17 January 1979 when he was again transferred to Germany. 

4.  On 20 April 1979, nonjudicial punishment was imposed against the applicant for operating a military wrecker without a valid driver’s license, driving the wrecker into a ditch and damaging it, and for wrongful appropriation of a military vehicle.

5.  The facts and circumstances surrounding the applicant’s administrative discharge are not available for review by the Board as they were loaned to the Veterans Administration in St. Louis, Missouri in 1981.  However, his records  contain a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) which shows that he was discharged under other than honorable conditions on 6 October 1980 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 8 years, 7 months, and 12 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 of that regulation provides, in part, 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 an undesirable discharge 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.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, the applicant would have voluntarily requested discharge for the good of the service in hope of avoiding a punitive discharge and having a felony conviction on his record.

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 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.  Likewise, without the facts and circumstances surrounding his discharge, it cannot be determined if his service is deserving of an upgrade of his discharge.





5.  Accordingly, there appears to be no 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)                                         AR20140018239





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ABCMR Record of Proceedings (cont)                                         AR20140018239



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