IN THE CASE OF:	  

		BOARD DATE:	  
		DOCKET NUMBER:  AR20080008649 


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 discharge be upgraded from under other than honorable conditions to general.

2.  The applicant states, in effect, that he would like to know if he is eligible for an upgrade.  He also states that he was not represented by legal counsel and did not understand what was happening.

3.  In support of his application, the applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a completed Standard Form 180 (Request Pertaining to Military Records).

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 14 June 1979 for 4 years.  He completed basic and advanced training and was awarded military occupational specialty 11C, Indirect Fire Infantryman.  He was advanced to pay grade E-3 on 29 September 1980. 

3.  On 13 December 1980, the applicant was punished under Article 15, Uniform Code of Military Justice (UMCJ), for failing to go to his appointed place of duty on 3 December 1980.  His punishment included a forfeiture of $140.00 pay and extra duty for 7 days.

4.  On 30 March 1981, the applicant was punished under Article 15, UMCJ, for failing to go to his appointed place of duty at the time prescribed on 4 and 5 March 1981.  His punishment included a reduction to pay grade E-2, a forfeiture of $130.00 pay, and extra duty for 7 days.

5.  The applicant's records are absent any evidence of awards for meritorious achievement or performance during his period of service.

6.  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 27 April 1981 in pay grade E-1 under the provisions of Army Regulation 635-200, Chapter 10, for Conduct Triable by Court-Martial.  His character of service was under other than honorable conditions.  He was credited with 1 year, 10 months, and 14 days total active service.  His signature is annotated on the DD Form 214.

7.  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.

8.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, 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.  An under other than honorable conditions discharge was normally considered appropriate.  The separation authority may direct a general discharge if such a discharge is merited by the Soldier's overall record.

9.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant's contentions have been noted; however, his records show that he received two non-judicial punishments for failing to go to his appointed place of duty on three occasions and was reduced to pay grades E-2 and E-1.  It appears the quality of his service was below that meriting a general under honorable conditions discharge.  The applicant has submitted neither probative evidence nor a convincing argument to show that he is now deserving of an upgrade.

3.  The applicant's discharge "packet" is not available for review; however, 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.  In the absence of evidence to the contrary, Government regularity in the discharge process is presumed.

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, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit any evidence that would satisfy this requirement.

6.  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

___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)                                         AR20080008649



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ABCMR Record of Proceedings (cont)                                         AR20080008649



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