IN THE CASE OF:	  

		BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090006506 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge. 

2.  The applicant states that he would like an honorable discharge. 

3.  The applicant provides no additional documents 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 applicant’s record shows he enlisted in the Regular Army (RA) and he entered active duty on 10 April 1979.

3.  On 13 June 1979, nonjudicial punishment (NJP) was imposed against the applicant for being disorderly at his unit.  His punishment consisted of a forfeiture of $97.00 per month for one month, and extra duty and restriction for 14 days.

4.  On 15 November 1979, NJP was imposed against the applicant for being drunk and disorderly on 1 November 1979, leaving his appointed place of duty without authority on 14 November 1979, and willfully knocking a paper towel dispenser off the wall on 15 September 1979.  His punishment consisted of reduction to the grade of private (PV1)/E-1; forfeiture of $104.00, suspended until 30 January 1980; and extra duty and restriction for 14 days.

5.  On 26 November 1979, the applicant's suspension of the punishment of forfeiture of $104.00 imposed on 15 November 1979 was vacated and the unexecuted portion of the punishment was duly executed.

6.  On 21 March 1980, NJP was imposed against the applicant for being in an off-limits area and for resisting being lawfully apprehended by a military policeman.  His punishment consisted of forfeiture of $104.00 per month for one month, and extra duty and restriction for 14 days.

7.  The charge sheet or the facts and circumstances pertaining to the applicant’s discharge proceedings in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), were not contained in his available military records.

8.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged for the good of the service in lieu of court-martial on 29 April 1980 under the provisions of Army Regulation 635-200, chapter 10.  The applicant completed 1 year and 20 days of total active service.

9.  There is no indication that 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.

10.  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.
11.  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.

12.  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.  Although a copy of the applicant's chapter 10 discharge packet is not in his available records, the presumption of regularity must be applied.  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 that requirement.

2.  The applicant's record of service included three Article 15s.  The applicant's discharge under chapter 10, Army Regulation 635-200 also indicates that he voluntarily requested discharge in lieu of a court-martial, although the specific offense(s) are unknown.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, 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)                                         AR20090006506



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ABCMR Record of Proceedings (cont)                                         AR20090006506



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