IN THE CASE OF:	  

	BOARD DATE:	  08 July 2008

	DOCKET NUMBER:  AR20080007257 


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, under other than honorable conditions, be upgraded to a discharge under honorable conditions (general).

2.  The applicant states that he was advised by his platoon leader that within 6 months of his release from active duty, his discharge would be upgraded.  He states that otherwise, he would have remained on active duty.

3.  The applicant provides in support of his application, a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214).

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.  On 29 January 1980, the applicant enlisted in the Army in Louisville, Kentucky, for 3 years, in the pay grade of E-1.  He successfully completed his training as an infantryman.  He was advanced to the pay grade of E-2 on 29 July 1980.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 20 August 1980, for two incidents of failure to go to his appointed place of duty.  His punishment consisted of restriction for 14 days, extra duty for 14 days, and a forfeiture of pay in the amount of $116.00.

4.  On 27 August 1980, NJP was imposed against the applicant for two incidents of being disrespectful in language towards his senior noncommissioned officer; for four incidents of failure to go to his appointed place of duty; and for having in his possession a smoke grenade.  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay in the amount of $224.00 per month for 2 months and correctional custody for 30 days.

5.  The applicant went absent without leave (AWOL) on 2 September 1980, and he remained absent until he was apprehended by civil authorities and returned to military control on 5 September 1980.  He was placed in pretrial confinement as a result of being AWOL.

6.  On 10 April 1981, the applicant had NJP imposed against him for failure to go to his appointed place of duty, for being absent from his unit, for violating a lawful general regulation (wearing a maroon beret with civilian clothes), and for failure to obey a lawful order (remove his military headgear.)  His punishment consisted of a reduction to the pay grade of E-1, a forfeiture of pay in the amount of $116.00, restriction for 14 days and extra duty for 14 days.  However, there is no evidence in the available record that shows that the applicant ever advanced to the pay grade of E-2 after his reduction to the pay grade of E-1 on 27 August 1980.

7.  On 14 April 1981, NJP was imposed against the applicant for failure to go to his appointed place of duty.  His punishment consisted of a forfeiture of pay in the amount of $116.00, restriction for 14 days and extra duty for 14 days.

8.  The applicant went AWOL again on 15 April 1981, and he remained absent until he was arrested and confined by civil authorities on 17 April 1981.  He was released from confinement on 23 April 1981, after completing a 6-day jail sentence; however, he failed to return to his unit.  The applicant remained absent in desertion until he surrendered to civil authorities on 25 June 1981.

9.  On 9 July 1981, the applicant was notified that charges were pending against him for being AWOL from 15 April 1981 until 25 June 1981.  He acknowledged receipt of the notification on 10 July 1981 and, after consulting with counsel, he submitted a request for discharge under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  There is no evidence in the available records that shows that the applicant was ever informed that his discharge would be upgraded within 6 months of his separation.

10.  The appropriate authority approved the request for discharge on 22 September 1981 and he directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 23 October 1981, the applicant was discharged, under other than honorable conditions, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service on lieu of trial by court-martial.  He had completed 1 year, 6 months and 12 days of net active service and he had over 60 days of lost time due to AWOL and confinement.

11.  On 27 May 1986 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

12.  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 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 is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contentions have been noted.  However, they are not substantiated by the evidence of record.  There is no evidence in the available record, nor has the applicant submitted any evidence, that shows he was told that the type of discharge he received would be upgraded within 6 months of his separation.  The available records show that he had NJP imposed against him on four separate occasions as a result of his act of misconduct and he had over 60 days of lost time due to AWOL and confinement.  Considering his numerous acts of indiscipline, it does not appear that his discharge under other than honorable conditions is too harsh and it appropriately characterizes his overall record of service.

4.  In order to justify correction of a military record the applicant must show 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.

5.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20080007257



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ABCMR Record of Proceedings (cont)                                         AR20080007257



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