IN THE CASE OF:	

		BOARD DATE:	  21 August 2008

		DOCKET NUMBER:  AR20080009153 


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, his discharge under other than honorable conditions be upgraded to a discharge under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, he had no trial and did not know his rights, or the consequences of his under other than honorable conditions discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 21 August 1980 and a 
DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) 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 personnel record shows he enlisted in the Regular Army on 16 January 1979 for a period of 3 years.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 15 June 1979, the applicant was assigned to Company B, 2nd Battalion (Airborne), 505th Infantry at Fort Bragg, North Carolina.

4.  On 23 April 1980, the applicant departed absent without leave (AWOL) and he was dropped from the rolls on 23 May 1980.

5.  On 27 June 1980, the applicant surrendered to military authorities in Long Beach, California.

6.  The applicant's separation processing package was not available for the Board's review.

7.  The facts and circumstances pertaining to the applicant’s discharge are not on file.

8.  On 21 August 1980, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200, by reason of conduct triable by court martial.  He had completed 1 year, 5 months, and 1 day of active service that was characterized as under other than honorable conditions.  He had 64 days of time lost.

9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included 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.  The request must have included the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) which he was charged with and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.  

10.  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.  The 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 he did not have a trial and he did not know his rights or what the consequences were of receiving a discharge under other than honorable conditions.

2.  The authority for the applicant's discharge indicates that he requested a discharge instead of going to trial.  In order to make this request a Soldier is required to consult with defense counsel.  Therefore, the applicant's contention is without merit.

3.  Although the applicant's separation package was not available, in order for him to be discharged under the provisions of Chapter 10 of Army Regulation
635-200, charges would have been preferred against him for an offense for which the authorized punishment includes a punitive discharge.  The applicant would have been required to consult with defense counsel and to have voluntarily, and in writing, requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant admitted he was guilty of the offenses he was charged with, and acknowledged that he could receive a discharge under other than honorable conditions.

4.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate considering all the facts of the case.

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 that requirement.

6.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's other than honorable discharge.
  

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)                                         AR20080009153



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ABCMR Record of Proceedings (cont)                                         AR20080009153



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