IN THE CASE OF:	  

		BOARD DATE:	  

		DOCKET NUMBER:  AR20080007456 


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 honorable or general.

2.  The applicant states that some employers think that this is a bad conduct discharge.
 
3.  The applicant provides no additional documentation in support of his 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 he enlisted in the Regular Army, in pay grade E-1, on 20 September 1972, for 3 years.  He was advanced to pay grade E-2 on 20 January 1973.

3.  The applicant was reported absent without leave (AWOL) on 7 May 1973 and returned to duty status on 15 May 1973.

4.  On 17 May 1973, the applicant accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his unit from on or about 7 May to on or about 16 May 1973.  The punishment included reduction to pay grade E-1 (suspended for 30 days), a forfeiture of $50.00 per month for two months, and 10 days extra duty.

5.  The applicant was reported AWOL on 22 June 1973 and returned to military control on 10 July 1973.  He was confined by civilian authorities on 28 July 1973 and returned to military control on 23 August 1973.

6.  A Report of Suspension of Favorable Personnel Action, dated 26 October 1973, reports that the applicant was pending discharge under Army Regulation 635-200, Chapter 13.

7.  The applicant was reduced to pay grade E-1 on 14 November 1973.

8.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was discharged on 15 November 1973, in pay grade E-1, under the provisions of Army Regulation 635-200.  The SPD (Separation Program Designator) 28B was entered on his DD Form 214.  This SPD translates to separation under the provisions of Chapter 13, for unfitness and unsuitability.  His character of service was under conditions other than honorable and he was furnished an Undesirable Discharge Certificate.  He was credited with 1 year and 1 day total active service and 54 days lost time due to AWOL and civilian confinement.  

9.  There is no evidence the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the policy and prescribes the procedure for administrative separation of enlisted personnel.  Chapter 13, in effect at that time, applied to separation for unfitness and unsuitability.  At that time, paragraph 


13-5a(1) provided for the separation of individuals for unfitness (frequent 
incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, an undesirable discharge was issued by the separation authority.

11.  Army Regulation 635-200, paragraph 3-7a, of this regulation provides that an honorable discharge is a separation with honor.  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 inappropriate.

12.  Army Regulation 635-200, paragraph 3-7b, 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.

DISCUSSION AND CONCLUSIONS:

1.  All the facts and circumstances pertaining to the applicant's discharge are unavailable for review.  The applicant’s record contains a properly constituted DD Form 214 which was authenticated by him.  This document identifies the reason and authority for the applicant's discharge and the characterization of his service.

2.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The applicant's contentions were considered; however, they do not support a change of his undesirable discharge. 

4.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

5.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise 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)                                         AR20080007456



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1


ABCMR Record of Proceedings (cont)                                         AR20080007456


4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1