IN THE CASE OF:	  

		BOARD DATE:	        16 APRIL 2009

		DOCKET NUMBER:  AR20090001212 


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 to a general discharge. 

2.  The applicant essentially states that he was told that his discharge would be upgraded after 2 years.  He also contends that he has been punished for a long time because of his discharge.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States) in support of this application.

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.  The applicant's military records show that he enlisted in the Regular Army on 3 April 1979.  He completed initial entry training and was awarded military occupational specialty 11C (Indirect Fire Infantryman).  He was then reassigned to Fort Ord, California for what would be his first and only permanent duty assignment.

3.  On 3 October 1979, the applicant accepted nonjudicial punishment under Article 15 of the Uniform Code of Military Justice for wrongfully having in his possession a suspected ounce, more or less, of marijuana.  His punishment consisted of a suspended reduction in rank and pay grade from private/E-2 to private/E-1, which apparently was remitted without action, forfeiture of $97.00 pay per month for 1 month, extra duty for 14 days, and restriction for 14 days.

4.  Although the facts and circumstances pertaining to the applicant’s discharge, i.e., his separation packet, are not contained in the available records, his military records do contain a properly constituted DD Form 214.  This DD Form 214 shows that the applicant was discharged on 18 June 1980 under the provisions of Chapter 10 (Discharge in Lieu of Trial by Court-Martial), Army Regulation 
635-200 (Enlisted Personnel).  He was issued a discharge under other than honorable conditions.  

5.  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.

6.  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.

7.  Army Regulation 635-200, paragraph 3-7 provides, in pertinent part, 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.

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 contends that his discharge under other than honorable conditions should be upgraded to a general discharge.

2.  The applicant's contention that he was told that his discharge would be upgraded after 2 years was considered, but found to lack any merit.  There has never been a provision of regulation which provided that a discharge would be upgraded after a certain amount of time, and the ABCMR does not upgrade discharges based solely on the passage of time.

3.  Although the facts and circumstances pertaining to the applicant’s discharge are not in his military records, it is clear that the applicant was charged with the commission of an offense or offenses punishable under the Uniform Code of Military Justice with a punitive discharge.  It is also presumed that he voluntarily (emphasis added) requested discharge from the Army in lieu of trial by court-martial.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

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 this requirement.  In view of the foregoing, there is no basis for upgrading the applicant's discharge under other than honorable conditions to a general discharge.

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)                                         AR20090001212



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ABCMR Record of Proceedings (cont)                                         AR20090001212



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