IN THE CASE OF:
BOARD DATE: 16 July 2009
DOCKET NUMBER: AR20090001795
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 be upgraded to a general, under honorable conditions, discharge.
2. The applicant states that the record speaks for itself.
3. The applicant provides no additional documentary evidence 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 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 enlisted in the Regular Army on 10 November 1976. He completed basic combat training and advanced individual training and was awarded military occupational specialty 31V (Tactical Communications System Operator/Mechanic).
3. On 14 July 1977, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for failing to go at the time prescribed to his appointed place of duty and remaining absent for the remainder of the day on
5 July 1977.
4. The applicant's discharge proceedings are not available for review.
5. The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 27 March 1979 with a discharge under other than honorable conditions, in pay grade E-1, under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 10, in lieu of trial by court-martial. He completed a total of 2 years, 4 months, and 18 days of creditable active service.
6. The applicant's available records contained a memorandum from Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, dated 27 March 1979, Subject: Expulsion from United States Military Reservation, which prohibited the applicant from entering the limits of the Fort Bragg Military Reservation.
7. There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
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 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.
9. 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 discharge proceedings are not available. In the absence of evidence to the contrary, Government regularity must be presumed and it is presumed the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, Chapter 10, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.
2. The applicant provides insufficient evidence to show that his discharge or the characterization of his discharge was improper or inequitable. As a result, there is no basis upon which to grant 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) AR20090001795
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ABCMR Record of Proceedings (cont) AR20090001795
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