IN THE CASE OF:	

		BOARD DATE:	     7 April 2009  

		DOCKET NUMBER:  AR20090001195 


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 undesirable discharge be upgraded to a general, under honorable conditions or an honorable discharge.

2.  The applicant states that before joining the Army, he did not use cigarettes, drink alcohol, or use drugs.  He was discharged because of his drug problem.  He admits that he had a lawyer and a psychiatrist, but does not remember their names.  He contends that he was informed at the time that he would receive a general discharge.

3.  The applicant provides, in support of his application, copies of a VA (Department of Veterans Affairs) Form 21-4138 (Statement in Support of Claim) and his DD Form 214 (Report of Separation from Active Duty). 

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 28 September 1972, the applicant enlisted in the Regular Army for 
2 years.  He completed his initial training and was awarded military occupational specialty (MOS) 51B (Carpenter).

3.  On 23 February 1973, the applicant was assigned for duty as a rigger with the 305th Engineer Company, Fort Story, Virginia.

4.  On 11 January 1974, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for twice failing to report to his place of duty.  The punishment included a forfeiture of $25.00 pay per month for 1 month.

5.  On 29 January 1974, the applicant accepted NJP for failing to report to his place of duty.  The punishment included reduction to pay grade E-3.

6.  On 18 February 1974, the applicant was assigned for duty as a rigger with the 497th Engineer Company, Fort Eustis, Virginia.

7.  On 12 March 1974, the applicant accepted NJP for being absent without leave (AWOL) during the period from 25 February to on or about 4 March 1974.  The punishment included reduction to pay grade E-2, forfeiture of $40.00 pay per month for 1 month, and 14 days restriction.  

8.  On 18 March 1974, the applicant again departed AWOL.  

9.  Item 38 (Record of Assignments) of the applicant's DA Form 20 (Enlisted Qualification Record) shows that he was returned to duty on 3 April 1974 with the 497th Engineer Company.

10.  The discharge packet is missing from the applicant's military records.  However, his DD Form 214 shows that he was administratively discharged on 
9 May 1974, under the provisions of Army Regulation 600-200 (Personnel Separation – Enlisted Personnel), Chapter 10, for the good of the service – in lieu of court-martial.  His service was characterized as under other than honorable conditions.  He had completed 1 year, 6 months, and 10 days of creditable active duty and had 32 days of lost time.


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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate; however, at the time of the applicant's discharge, an undesirable discharge was considered appropriate.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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 member’s 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.

14.  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 Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that he was informed at the time of his release that he would receive a general discharge.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge, but it appears it was related to his last period of AWOL.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust or that he was promised a general discharge. 

4.  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 the aforementioned requirement.

5.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090001195



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ABCMR Record of Proceedings (cont)                                         AR20090001195



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