IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080006980

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 be upgraded. 

2.  The applicant states that he has one Article 15 (UCMJ) and at least 20 letters of commendation for outstanding service.  He also states in effect, that he was trying to get married and had a son.  The applicant continues to state, in effect, that he wanted to stay overseas for another term but instead the Army asked him to leave his wife and son.  He finally states that this was devastating to him and he has not been the same since.

3.  The applicant provides no additional documents 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 DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he enlisted in the Regular Army on 9 February 1976.  He completed the required training and was awarded military occupational specialty (MOS) 94B (Food Service Specialist).  The highest rank he attained while serving on active duty was Private First Class, pay grade (E-3).

3.  The applicant's record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  On 18 April 1977, the applicant accepted nonjudicial punishment (NJP) for disobeying a lawful order from a superior commissioned officer on 26 March 1997 and on the same day, assaulted a Soldier by kicking him in the legs.  His imposed punishment was a forfeiture of $75.00 pay ($25.00 suspended until
18 May 1977) and restriction to the battery area for seven days.

5.  Orders 4-246, Headquarters, Presidio of San Francisco, Presidio of San Francisco, California, dated 21 December 1977, show that the applicant was discharged effective 21 December 1977. 

6.  The specific facts and circumstances surrounding the applicant’s active duty discharge processing are not available for review.  The evidence does include a properly constituted DD Form 214 authenticated by the applicant that contains the authority and reason for the applicant’s active duty discharge on 
21 December 1977, in pay grade E-1, under the provisions of Army Regulation 
635-200, Chapter 10, with an under other than honorable conditions discharge for the good of the service in lieu of court-martial.  The DD Form 214 he was issued confirms he completed a total of 1 year, 9 months, and 28 days of creditable active military service and had 15 days of lost time due to being absent without leave (AWOL).

7.  Army Regulation 635-200 (Personnel Separations) 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 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, a discharge under other than honorable conditions is normally considered appropriate.

8.  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.
9.  Army Regulation 635-200 (Personnel Separations) 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 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 trail by court-martial.  An undesirable discharge 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 (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.

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.  The applicant’s contentions were carefully considered and found to be without merit.

2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted DD Form 214 that identifies the reason and the characterization of the applicant‘s discharge and is authenticated by the applicant’s signature.  

3.  The evidence of record shows that the applicant was discharged with an under other than honorable conditions discharge and had 15 days of lost time due to AWOL.

4.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.


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)                                         AR20080006980



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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