IN THE CASE OF:	  

		BOARD DATE:	        02 December 2008

		DOCKET NUMBER:  AR20080012402 


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 under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states that the type of discharge that he received was inequitable because it was based on one isolated incident that occurred 34 months into his 4-year enlistment.  He states that he had no other adverse action against him and he was 2 months short of the expiration of his term of service.  He states that he was young and that no one gave him advice or proper choices.

3.  The applicant provides in support of his application, an Application for the Review of Discharge from the Armed Forces of the United States (DD Form 293); a copy of his Certificate of Release or Discharge from Active Duty (DD Form 214); a copy of his Certificate of Citizenship; copies of his Social Security Card and Identification Card; a Certificate of Training in Basic Fire Behavior; a Certificate of Completion in Laubach Literacy Action Volunteer Tutor Workshop; a Certificate of Completion in Advanced Rescue Solutions; two Certificates of Training in Wildland Firefighting; a Certificate of Training in Conservation Crewmanship; a Certification of Recognition from the Nevada Division of Forestry; a Certificate of Completion of “S-110, S-130, S-131, S-190”; a self authored letter addressed to the Army Review Boards Agency Support Division dated 7 July 2008; and a letter addressed to him, from the Army Review Boards Agency Support Division dated 4 May 2007.


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.  On 1 May 1979, the applicant enlisted in the Regular Army in Miami, Florida, for 3 years, in the pay grade of E-1.  He successfully completed his training as an infantryman.  He was subsequently advanced to the pay grade of E-2.  However, the exact date of his advancement is unclear.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 7 February 1980, for being absent without leave (AWOL) from 10 December 1979 through 18 December 1979.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, and extra duty.

4.  The applicant went AWOL on 30 May 1980 and he remained absent until 6 August 1980.  The punishment that was imposed against him is not reflected in the available record.

5.  On 11 August 1980, NJP was imposed against the applicant for being AWOL from 13 March 1980 through 5 April 1980.  His punishment consisted of correctional custody, and a forfeiture of pay.

6.  On 4 August 1981, NJP was imposed against the applicant for being disrespectful in language toward a commissioned officer and for disobeying a lawful order on 30 July 1981.  His punishment consisted of correctional custody, a reduction in pay grade, and a forfeiture of pay.

7.  On 6 November 1981, NJP was imposed against the applicant for failure to go to his appointed place of duty at the time prescribed on 30 October 1981.  The punishment that was imposed against him is not reflected in the available record.



8.  The applicant went AWOL on 26 February 1982 and he remained absent in desertion until he was apprehended by civil authorities in Dade County, Florida, on 22 July 1982.  He was transported to Orlando, Florida, jail on 26 July 1982. He was transported to Fayetteville, North Carolina, on 28 July 1982 and he was subsequently returned to military control.

9.  The facts and circumstances surrounding the applicant’s discharge are not on file.  The DD Form 214 that he was furnished at the time shows that he was discharged on 3 November 1982, under other than honorable condition, under the provisions of Army Regulation 635-200, chapter 10.  His DD Form 214 shows “Administrative Discharge-Conduct triable by court-martial” as the narrative reason for his separation.  However, he was discharged for the good of the service in lieu of trial by court-martial.

10.  On 1 April 1998 the Army Discharge Review Board denied the applicant's petition to upgrade his discharge.

11.  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, is must be presumed that the applicant's administrative separation was accomplished in compliance with applicable regulations and that his rights were not jeopardized.

2.  Based on the information contained in his records; it appears that the type of discharge that he was furnished was appropriate.

3.  The applicant’s contentions have been noted and the documents submitted in support of his application have been considered.  However, they are not sufficiently mitigating to warrant an upgrade of his discharge.  His records show that his discharge was not based on one isolated incident as he contends and considering the nature of his offense, which includes numerous AWOL incidents, it does not appear that the type of discharge that he received was too harsh or unjust.
4.  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 has failed to submit evidence that would satisfy this requirement.

5.  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.




      _______ _ XXX  _______   ___
               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)                                         AR20080012402



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ABCMR Record of Proceedings (cont)                                         AR20080012402



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