IN THE CASE OF:	  

		BOARD DATE:	  18 August 2009

		DOCKET NUMBER:  AR20090005784 


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 to have his 1986 discharge from the Regular Army upgraded due to his current military status and to clear any civilian records reflecting this information.

2.  The applicant states, in effect, that his discharge was due to an error in judgment from a young Soldier.  After realizing his grave error he enlisted in the Tennessee Army National Guard and has served in a dual status position since 1990 until the present.  He has deployed in Operation Iraqi Freedom III (OIF III) and recently completed the Sergeants Major Academy.  He realizes the blemish on his military and civilian records is an embarrassment to himself and the military he serves.

3.  The applicant provides DA Forms 2166-8 Noncommissioned Officer Evaluation Reports (NCOER) for the period ending June 2004, June 2005,  August 2006, 31 August 2007, and 31 August 2008.  He also provides a DD Form 1059 (Service School Academic Evaluation Report) and a DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 is currently serving as a Sergeant Major with the Tennessee Army National Guard in a dual status position. 

3.  The applicant enlisted in the Regular Army, at the age of 19, on 22 August 1984, for a period of 3 years in the rank of private (PVT)/E-1.  He completed the required training and was awarded military occupational specialty (MOS) 
19D (Calvary Scout).  The highest rank he attained was specialist (SPC)/E-4.

4.  On 14 June 1986, the applicant departed his unit in an absent without leave (AWOL) status and was dropped from the rolls of the Army, on 13 July 1986.  On 10 September 1986, the applicant surrendered to military authorities at Fort Knox, Kentucky.

5.  On 15 September 1986, the applicant signed an ATSB-SB Form 4256 statement which declared that he had been advised by his defense attorney that at that time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  This was not due to any fault of the government but merely to the time required to request and mail the documents and records.  Further, he had been advised by his military counsel that he could not completely advise the applicant without those records.  The applicant realized his defense counsel was limited by the few records that were available as to the advice he could give.  Nevertheless, knowing all this to be true, applicant waived all defenses that may have become known had his defense counsel been able to review his records.  The applicant knowingly, willingly, and voluntarily declared that he was AWOL from the U.S. Army from   14 June 1986 to 10 September 1986.  He made this admission for administrative purposes only so he could process out of the Army and realized that in doing so he may be given an other than honorable discharge.   He further declared that his military defense counsel explained to him to his complete understanding and satisfaction, all the legal and social ramifications of that type of discharge and what it would mean to him in the future.  He further declared that this agreement only pertains to his unauthorized AWOL and that the Army could (any time prior to his discharge) prefer charges for any other military crimes pending against him.

6.  The discharge documents are missing from his file, but the file does contain his DD Form 214 from that period of service, and Orders Number 198-11 dated 
10 October 1986 discharging the applicant from the Army on 20 October 1986 under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial with an under other than honorable conditions discharge certificate.  He had completed a total of 1 year, 11 months, and 3 days of creditable active military service during the enlistment under review and he had 88 days of lost time.

7.  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.  

8.  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.

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 Soldier’s 
separation specifically allows such characterization.

10.  There is no evidence available that indicates the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

11.  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.  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.


DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention in effect, that his 1986 discharge should be upgraded because of his successful career in the Tennessee Army National Guard was carefully considered and found to be insufficient in merit.  The applicant's record of service for the period in question shows that his quality of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to have his discharge upgraded.  In view of the foregoing; there is no basis for granting the applicant’s request. 

2.  In view of the limited availability of his records there is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  Thus, in the absence of evidence to the contrary, it is presumed that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant provided his NCOERs and a DD Form 214 as evidence to substantiate his request; unfortunately, they are for his current service and not applicable to his prior 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.

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)                                         AR20090005784



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ABCMR Record of Proceedings (cont)                                         AR20090005784



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