IN THE CASE OF:
BOARD DATE: 28 April 2009
DOCKET NUMBER: AR20090000634
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 undesirable discharge be upgraded to either a general discharge or an honorable discharge.
2. The applicant states that he needs his discharge upgraded to utilize Department of Veterans Affairs (VA) services.
3. The applicant does not provide any additional documents in support of his request.
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's military records show that he enlisted in the Regular Army on 24 October 1969. He never completed initial entry training; therefore, he was not awarded a military occupational specialty.
3. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) on 8 November 1969 and
15 January 1970 for being absent without leave (AWOL).
4. On 13 March 1970, the applicant was convicted by a summary court-martial of being AWOL from 26 January to 4 March 1970.
5. The applicant's discharge packet is not contained in his military records.
6. On 14 December 1970, the applicant was issued an Undesirable Discharge Certificate under the provisions of Army Regulation 635-200, Chapter 10. He had completed 8 months and 16 days of creditable active service and he had 155 days of lost time.
7. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) 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.
8. 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 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
9. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law. The honorable characterization is appropriate when the quality of the members service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
10. Army Regulation 635-200, paragraph 3-7b, 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant's repeated, prolonged, unexcused absences were serious misconduct and certainly warranted an undesirable discharge.
2. Since the applicant's discharge packet was not contained in the applicant's records, a presumption of regularity must be made, that what the Army did was correct. The burden of proving otherwise lies with the applicant.
3. The Board does not upgrade a properly issued discharge due to the passage of time or to establish benefits with another agency.
4. 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) AR20090000634
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ABCMR Record of Proceedings (cont) AR20090000634
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