IN THE CASE OF:	  

		BOARD DATE:	        29 JULY 2008

		DOCKET NUMBER:  AR20080006960 


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, that his undesirable discharge be upgraded to an honorable or general discharge. 

2.  The applicant essentially states that a deal was put in place for him to sign his discharge paperwork and his undesirable discharge would become an honorable discharge 6 months after he was separated.  

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty); an unofficial transcript for college from Fall 1976 to Fall 1978 with Laney College [part of the Peralta Community College District]; a six-page report titled "Carpenter's Detail Hours from Work Month [October] 1974 – [31 January] 2008; six third-party letters of support; a letter, dated 21 March 2008, from the Army Review Boards Agency Support Division in St. Louis, Missouri; and a 
DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of this 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 military records show that he enlisted in the Regular Army on 10 May 1974.  He completed basic and advanced individual training and was awarded military occupational specialty 76Y (Unit Organization Supply Specialist).  He then departed for a tour in Germany on 23 September 1974 for what would be his first and only permanent duty assignment.

3.  Although the official facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not available for review, the applicant provided a properly constituted DD Form 214.  This DD Form 214 shows that the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel), Chapter 10 (Discharge in Lieu of Trial by Court-Martial).  This document also shows that he was issued a DD Form 258A (Undesirable Discharge Certificate).  

4.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

5.  The applicant essentially states that a deal was in place for him to signed his discharge paperwork and his undesirable discharge would become an honorable discharge 6 months after he was separated.

6.  The applicant provided an unofficial transcript which essentially shows that he completed some college courses from Fall 1976 to Fall 1978.  He also provided a 
six-page report titled "Carpenter's Detail Hours from Work Month [October] 1974 – [31 January] 2008" which essentially shows his employment history for this time period.

7.  The applicant also provided six third-party letters of support.  These letters essentially portray the applicant as a positive role model who always presented an image of being nothing less than professional, and a person who is reliable, 



dedicated, honest, and hard-working.  These letters also show that the applicant is a good father to his children, and that he made sure that they were all college educated.  They also state, in pertinent part, that the applicant is very active in volunteering whenever needed, and that he also volunteered his time at a rescue mission for the homeless and abused.  

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive [bad conduct or dishonorable] discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions [the current equivalent of the applicant's undesirable discharge] is normally considered appropriate.

9.  Army Regulation 635-200 paragraph 3-7, 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  Army Regulation 635-200, paragraph 3-7, also 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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This 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.  The applicant contends that his undesirable discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that a deal was in place for him to sign his discharge paperwork and his undesirable discharge would become an honorable discharge 6 months after he was separated was considered, but not found to have any merit.  There has never been a provision of regulation which provided for an automatic upgrade of a discharge after a specific period of time.

3.  The evidence provided by the applicant, which included an unofficial college transcript, a record of his work experience, and six third-party letters of support were carefully considered.  However, the applicant's post-service achievements and conduct alone are not sufficient for upgrading his discharge.  

4.  Although the official facts and circumstances pertaining to the applicant’s discharge were not available for review, it is clear that the applicant was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  It is also clear that he voluntarily requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  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.

6.  In view of the foregoing, there is no basis for upgrading the applicant’s undesirable discharge to an honorable or general discharge in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__XXX __  __XXX__  __XXX__   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.




      ___        XXX                ___
                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)                                         AR20080006960



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ABCMR Record of Proceedings (cont)                                         AR20080006960



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