IN THE CASE OF: BOARD DATE: 18 November 2008 DOCKET NUMBER: AR20080011876 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, in effect, upgrade of his under other than honorable conditions discharge to general, under honorable conditions. 2. The applicant states, "A drunk private attacked me with a knife and I took it away from him. As other military personnel arrived at the fight, I was seen holding the knife. I was accused of having the knife." 3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his application. THE COUNSELS REQUEST, STATEMENT, AND EVIDENCE Counsel, a state veterans services officer, prepared the application but made no separate request of statement. 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 for 3 years and entered active duty on 2 April 1980. He completed training as a terminal operations coordinator and was assigned to a transportation company. He was advanced to pay grade E-2 on 2 August 1980. 3. On 23 January 1981, he accepted nonjudicial punishment under the provisions of Article 15, Uniform Code of Military Justice for failing to obey a lawful order. The punishment, forfeiture of $116.00 per month for 1 month, was suspended until 9 April 1981. 4. The facts and circumstances pertaining to the applicant's discharge are not in the available records. The DD Form 214 indicates that the applicant was discharged on 2 June 1981, under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial, and was issued an under other than honorable conditions discharge. 5. Army Regulation 635-200 (Personnel Separations), in effect at the time, provided that a Soldier whose conduct has rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge may request a discharge for the good of the service in lieu of trial by court-martial. The regulation required that there was no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel (a member of the Judge Advocate Generals Corps or a person qualified under Article 27(b)(1) of the Uniform Code of Military Justice). The Soldier was also required to sign the request indicating he understood that he may receive a discharge under other than honorable conditions and the adverse nature of such a discharge. The regulation also required that the request be forwarded through channels to the general court-martial convening authority. The regulation also provided that an Under Other Than Honorable Conditions Discharge Certificate will normally be furnished to an individual who is discharged for the good of the service in lieu of trial by court-martial. 6. The applicant apparently did not apply to the Army Discharge Review Board during that Board's 15-year period of eligibility. DISCUSSION AND CONCLUSIONS: 1. Although the discharge documentation is not of record, the evidence of record shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have had to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant would be required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  Included in the chapter 10 requirements at that time was a requirement that the applicant admit guilt to the stipulated offenses under the UCMJ or lesser-included charges.  2. In the absence of information to the contrary, the Board is required to presume all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  3. 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 this requirement. 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) AR20080011876 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20080011876 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1