IN THE CASE OF:	  

		BOARD DATE: 	       16 July 2009

		DOCKET NUMBER:  AR20090006479 


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, as the father of a deceased former service member (FSM), requests that his late son's discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that the FSM was under the impression he was receiving a general discharge at the time he was released from the Army.  He indicates that since the FSM was not available to sign his discharge document he did not fully understand the difference between a general discharge and a discharge under other than honorable conditions.  He states that the reason for his son's discharge was excess leave which was caused by personal problems.  He goes on to state that after his son's death he called the Department of Veterans Affairs (DVA) to inquire about benefits for his son and that after gaining access to the FSM's DD Form 214 (Certificate of Release or Discharge from Active Duty) he discovered that the FSM did not receive a general discharge.

3.  The applicant provides a copy of the FSM's DD Form 214, a DA Form 31 (Request and Authority for Leave), the FSM's death certificate, a letter of debarment, a letter of separation, and the FSM's birth certificate in support of his 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 FSM enlisted in the Regular Army on 15 November 1988 for a period of 4 years.  He successfully completed one-station unit training in military occupational specialty 11B (infantryman).

3.  Records show the FSM departed absent without leave on 25 July 1989 and returned to military control on 14 August 1989.

4.  The facts and circumstances surrounding the FSM’s discharge are not contained in the available records.  However, the FSM's DD Form 214 shows he was discharged under other than honorable conditions on 9 September 1992 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of court-martial.  He had served 1 year, 1 month, and 25 days of creditable active service.  His DD Form 214 shows his dates of lost time were 6 September 1989 to 5 May 1992 and that he was placed on excess leave on 13 May 1992.

5.  There is no indication in the available records which shows the FSM applied to the Army Discharge Review Board 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 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.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.

8.  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.  A discharge is not upgraded for the purpose of obtaining DVA benefits.
 
2.  In the absence of evidence to the contrary, it must be presumed that the FSM’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090006479



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ABCMR Record of Proceedings (cont)                                         AR20090006479



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