IN THE CASE OF:
BOARD DATE: 12 August 2008
DOCKET NUMBER: AR20080010787
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 under other than honorable conditions be upgraded.
2. The applicant states that when his sister was beaten, raped and dumped his mind snapped and he went absent without leave (AWOL). After he came to his senses, he turned himself in. The applicant adds that he doesnt feel that he was given any credit for turning himself in and the circumstances that led to his AWOL were not taken into consideration.
3. The applicant provides his separation document (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 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 applicants military records show that he enlisted in the Regular Army on 22 March 1977, was awarded the military occupational specialty of combat engineer, and was promoted to pay grade E-3.
3. On 9 November 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniformed Code of Military Justice, for hitting a noncommissioned officer in the face with his closed fist.
4. On 6 August 1979, the applicant departed AWOL, and remained AWOL until he turned himself in to military authorities on 24 July 1980.
5. Documentation in the applicants records show that he was to be processed for discharge under the provisions of Army Regulation 635-200, Chapter 10. However, the applicants discharge packet is not contained in his records.
6. On 23 September 1980, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200, Chapter 10, Administrative discharge conduct triable by a court-martial.
7. 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 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.
DISCUSSION AND CONCLUSIONS:
1. In the absence of evidence to the contrary, a presumption of regularity must be presumed, that what the Army did was correct. As such, even though the applicants records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.
2. While the applicant states that he snapped when he learned that his sister was beaten, raped, and dumped, he has not provided any documentation to substantiate his contention.
3. While it is commendable that the applicant turned himself in, that, in and of itself, is insufficient to warrant upgrading a properly issued discharge.
4. As such, there is insufficient basis in which to grant the applicants 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) AR20080010787
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ABCMR Record of Proceedings (cont) AR20080010787
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