IN THE CASE OF: BOARD DATE: 14 December 2010 DOCKET NUMBER: AR20100015072 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 to an honorable discharge. 2. He states he needs his discharge upgraded for medical benefits. He explains he was laid-off from his job and has been unable to find employment due to the state of the economy. 3. He provides five supporting statements and a State of North Carolina Criminal Record Search. 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 record shows he enlisted in the Regular Army on 8 February 1973. 3. On 10 May 1973, nonjudicial punishment (NJP) was imposed against him for being absent without leave (AWOL) from his unit from 7 May 1973 to 9 May 1973. 4. Special Court-Martial Order Number 115, dated 9 October 1973, shows he was found guilty of being AWOL from 18 June 1973 to 11 September 1973. 5. The charge sheet and the facts and circumstances pertaining to the applicant's discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, in lieu of trial by court-martial are not contained in his available military records. 6. However, his records contain a duly-constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, on 24 April 1974. It shows his discharge was characterized as under other than honorable conditions. It further shows he completed 7 months and 22 days of total active service with 205 days lost under Title 10, U.S. Code, section 972. 7. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations. 8. The five supporting statements submitted by the applicant speak highly of his honesty and dependability. Several statements attest to his support to his family and the community. 9. Army Regulation 635-200 sets 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 the charge has been preferred. A discharge under other than honorable conditions is normally considered appropriate. 10. Army Regulation 635-200, 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. 11. Army Regulation 635-200, 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. DISCUSSION AND CONCLUSIONS: 1. Although the applicant's chapter 10 discharge packet is not in the available records, the presumption of regularity must be applied. He failed to show through the evidence he provided that the record is in error or unjust. 2. The fact that he is currently experiencing a difficult economic situation and is in need of medical benefits is unfortunate. However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veterans' benefits. The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade. 3. His record of service included an NJP, conviction by a special court-martial, and 205 days of time lost due to being AWOL. His discharge under chapter 10, Army Regulation 635-200, indicates he voluntarily requested discharge in lieu of trial by court-martial, although the specific offense(s) are unknown. Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct rendered his service unsatisfactory. Therefore, there is no basis for granting him the requested relief. 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 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) AR20100015072 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100015072 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1