IN THE CASE OF:	

		BOARD DATE:	4 August 2009  

		DOCKET NUMBER:  AR20090007051 


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 under other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states that he needs his discharge upgraded for Department of Veterans Affairs (VA) services only.

3.  The applicant provides no additional documentation.

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.  On 30 April 1976, the applicant enlisted in the Regular Army in Los Angeles, California, for 3 years, in the pay grade of E-1.  He successfully completed his training as a chaparral crewman and was awarded the related military occupational specialty.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 18 May 1976 for leaving his post before he was regularly relieved.  His punishment consisted of a forfeiture of pay in the amount of $70.00 and restriction for 7 days.

4.  On 22 July 1976, NJP was imposed against him for failure to go at the time prescribed to his appointed place of duty (twice) on 21 July 1976.  His punishment consisted of a forfeiture of pay in the amount of $50.00, restriction for 10 days, and extra duty for 10 days.

5.  The applicant was promoted to the pay grade of E-2 on 30 August 1976 and he was promoted to the pay grade of E-3 on 11 January 1977.

6.  On 16 February 1977, the applicant left his unit in an absent without leave (AWOL) status and he remained absent until he surrendered to military authorities on 17 March 1977.

7.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available record.  The DD Form 214 (Report of Separation from Active Duty) that he was furnished at the time shows he was discharged, on
6 June 1977, under other than honorable condition, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 1 year and 9 days of total active service and he had approximately 29 days of lost time due to being AWOL.

8.  A review of the available evidence does not show the applicant ever 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.  A discharge under other than honorable conditions is normally considered appropriate.


10.  Paragraph 3-7a of Army Regulation 635-200 (Enlisted Personnel) 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.  

11.  Paragraph 3-7b also 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 contends that his discharge under other than honorable conditions should be upgraded to an honorable or a general discharge for VA benefits.

2.  The applicant’s contentions were considered.  However, the fact that the applicant desires to obtain VA benefits is not sufficiently mitigating to warrant the relief requested.  The applicant’s records show NJP was imposed against him twice and he also went AWOL for approximately 29 days.

3.  Based on the information contained in his records; it appears the type of discharge that he received was appropriate.  In the absence of evidence to the contrary it must be presumed that what the Army did in his case was correct.

4.  In order to justify correction of a military record the applicant must show or it must otherwise satisfactorily appear the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  In view of the foregoing, 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)                                         AR20090007051



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ABCMR Record of Proceedings (cont)                                         AR20090007051



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