IN THE CASE OF:	  

		BOARD DATE:	  7 July 2015

		DOCKET NUMBER:  AR20140020698 


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 his discharge under other than honorable conditions be upgraded to a more favorable discharge.

2.  The applicant states he was young and his mother was dying and he would have done anything to get home.  

3.  The applicant provides a list of reasons why his discharge should be upgraded.

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 23 years of age when he enlisted in the Regular Army on 22 June 1983 for a period of 3 years and training as a power generator equipment repairer.  He completed his basic training and his advanced individual training and was award military occupational specialty (MOS) 52D.  On 17 December 1984, he reported to his first duty station at Schofield Barracks, Hawaii.  He was promoted to the rank of specialist four (SP4)/pay grade E-4 on 1 June 1985.

3.  On 30 January 1986, he reenlisted for a period of 5 years, assignment to Fort Hood, Texas, and a selective reenlistment bonus.

4.  On 18 February 1986, nonjudicial punishment was imposed against him for the wrongful use of marijuana.

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 Cleveland, Ohio, on 9 September 1986.  

6.  The applicant’s records contain a duly authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged under other than honorable conditions on 6 June 1986 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 2 years, 11 months and 15 days of active service.  This DD Form 214 does not list time lost under the provisions of Title 10, U.S. Code, section 972.   He received the Army Service Ribbon and Marksman Marksmanship Qualification Badge with Rifle Bar (M-16).

7.  As evidence to support his application, the applicant provided a preprinted list of issues that the Board should consider.  The list includes statements such as: 

* under current standards, I would not receive the type of discharge I did
* my average conduct and efficiency ratings/behavior and proficiency marks were good or pretty good
* I received awards, decorations and letters of recommendation
* my record of promotion showed I was generally a good service member
* there were other acts of merit
* I was close to finishing my tour 
* my record indicates only isolated or minor offenses
* I have been a good citizen since discharge
* my youth and immaturity impaired my ability to serve
* I had personal and financial problems that impaired my ability to serve
* I tried to apply for a compassionate reassignment

8.  The applicant did not provide separate evidence to support his contentions noted above.  He specifically stated his mother was dying and he requested a compassionate assignment, yet his record is void of medical documents from his mother's medical providers or a compassionate reassignment request.  

9.  There is no evidence of record that shows he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser-included offense which authorizes the imposition of a bad conduct or dishonorable discharge.  In addition, they must indicate they were briefed by their commander and legal counsel and understand the consequences of such a request to include the loss of veterans' benefits at the State and Federal level as well as the discharge characterization of service one might receive.  A discharge under other than honorable conditions is normally considered appropriate.

   a.  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.

   b.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.
   
11.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.



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, it is presumed he 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 or to a lesser offense. 

3.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances, especially given the absence of the facts and circumstances surrounding his discharge and evidence to support his contentions.  As the applicant was 23 years of age at the time of his enlistment, his contention that he was young and immature is not accepted.  He successfully completed his training and was awarded an MOS.  He then reported to his first duty station where he was promoted to SP4/E-4 and allowed to reenlist with a bonus entitlement.  

4.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

5.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's discharge to honorable or to general under honorable conditions.

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)                                         AR20140020698



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ABCMR Record of Proceedings (cont)                                         AR20140020698



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