IN THE CASE OF:
BOARD DATE: 21 October 2008
DOCKET NUMBER: AR20080010072
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 to honorable.
2. The applicant states, in effect, that he has a degree in homeland security and he desires employment with the Department of Veterans Affairs. He states that he wants to serve his community, state and nation.
3. The applicant provides copies of a transcript from Everest University showing that he earned an Associate in Applied Science, Homeland Security, in 2008; a VA form requesting a copy of his military records and two photographs.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant enlisted and entered active duty on 28 July 1981. He completed training as an infantryman and was stationed in Panama with the 10th Infantry Regiment. He was advanced to pay grade E-3 on 1 March 1982.
3. The applicant was absent without leave (AWOL) from 14 October 1982 to
28 November 1982. Charges were preferred for that offense on 1 December 1982.
4. On 20 January 1983, the applicant was separated, in pay grade E-1, with an under other than honorable conditions discharge under the provisions of Army regulation 635-200, chapter 10. He had completed 1 year, 4 months and 8 days of creditable service and he had 36 days of lost time due to being AWOL.
5. The only available documents that are relevant to the discharge processing are the charge sheet and an order directing the applicant's reduction to pay grade E-1.
6. 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
7. There is no available evidence that the applicant applied to Army Discharge Review Board during that Board's 15-years period on eligibility
8 . 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. This 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's achievement in obtaining an Associate's Degree and his desire to obtain employment with the VA are commendable, but these factors do not justify upgrading his discharge.
2. He has provided nothing to overcome the presumption of regularity in this case.
3. In order to justify correction of a military record the applicant must, 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. In view of the foregoing, there is no basis for granting relief to the applicant in this case.
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.
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