BOARD DATE:	  4 August 2009

		DOCKET NUMBER:  AR20090006627 


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 under other than honorable conditions discharge be upgraded to general.

2.  The applicant states, in effect, that his discharge was the result of his commander's prejudice against his race and color.  He maintains that his commander provoked him by pushing and shoving him and calling him a highly offensive name.  The applicant adds that he felt so helpless that he went absent without leave (AWOL).  He offers that he does not have any evidence to substantiate his claim, but states that he wrote three or four letters to the Inspector General (IG) complaining about things that were going on in the company.

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 and entered active duty on 20 September 1979.

3.  On 3 November 1980, the company commander recommended that a bar from reenlistment be placed on the applicant.  He cited the applicant's unsatisfactory performance of duty as justification for approval.  He stated that the applicant was slow to carry out orders, shirked his assigned duties, and was unable to adapt to military life.  The applicant initialed the form indicating that he was furnished a copy of the bar from reenlistment and did not desire to submit a statement on his behalf.  The bar was approved on 10 November 1980.

4.  On 4 August 1981, nonjudicial punishment was imposed against the applicant for failing to be at his appointed place of duty.  His punishment consisted of forfeiture of $130.00 pay and extra duty for 7 days.

5.  DA Forms 4187 (Personnel Action), dated 18 August 1981 and 8 October 1981, show that on 8 August 1981 the applicant's duty status was changed from present for duty to AWOL and on 6 September 1981 he was dropped from the unit rolls.

6.  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), were not contained in his military records.

7.  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 under the procedures of Army Regulation 635-200, chapter 10.  The applicant had 2 years, 4 months, and 2 days of total active service with the periods of 12 December 1981 to 20 December 1981, 8 August 1981 to 7 September 1981, and 26 September 1981 to 26 October 1981 listed as lost time under Title 10, U.S. Code, section 972.


8.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board's 15-year statute of limitations.

9.  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.  At the time, an undesirable discharge was normally considered appropriate.

10.  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.  The applicant argues that his AWOL was the result of his commander's prejudice and his feeling of helplessness.  He also maintains that he wrote three or four letters to the IG concerning the company's situation.  However, he has failed to provide evidence to show that he informed anyone of the company's or commander's issues and/or sought counseling to resolve his feelings of helplessness.  Therefore, the applicant's contention that his commander's attitude toward him led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  Although a copy of the applicant's chapter 10 discharge documents is not in his file, 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.

3.  The applicant's record of service included over 60 days of time lost due to AWOL.  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 to upgrade the applicant's 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.



      ___________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)                                         AR20090006627



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ABCMR Record of Proceedings (cont)                                         AR20090006627



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