BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090007534 


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, in effect, upgrade of his under other than honorable conditions discharge.

2.  The applicant states that his discharge was unjust because no one was hurt.  It was just two friends having a misunderstanding and he told the truth about what happened.  No one was hit or hurt in their foolish little fight.  He goes on to state that he was a good Soldier and he was put out for nothing.  He also states that he has been working ever since his discharge 30 years ago and he is now gray and desires to have his discharge upgraded.

3.  The applicant provides no additional documents with 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 enlisted in the Regular Army (RA) in New Orleans, LA on 15 February 1977 for a period of 3 years, training in military occupational specialty (MOS) 94B as a food service specialist, and assignment to Fort Bragg, NC.  He successfully completed his training and he was transferred to Fort Bragg for his first and only duty assignment.

3.  On 18 January 1978, nonjudicial punishment (NJP) was imposed against the applicant for shoplifting from the Post Exchange, for disobeying a lawful order from a superior commissioned officer, and for being disrespectful in language towards a superior noncommissioned officer (NCO).  His punishment consisted of a forfeiture of pay and extra duty.

4.  On 8 June 1978, NJP was imposed against the applicant for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of a reduction to the rank/grade of private (PV1)/E-1, a forfeiture of pay, and extra duty.

5.  On 22 February 1979, the applicant's commander notified him that he was initiating action to bar him from reenlistment.  He cited as the basis for his recommendation the applicant's disciplinary record, his failure to pay his just debts, and his failure to respond to numerous counseling sessions regarding his failure to go at the time prescribed to his appointed place of duty, failure to follow instructions, fighting, his unacceptable duty performance and disruptive conduct, and his pending charges of aggravated assault for which court-martial charges were being initiated.  The applicant elected not to submit matters in his own behalf and the appropriate authority approved the bar to reenlistment on
21 March 1979.

6.  The facts and circumstances surrounding the applicant’s discharge are not present in the available records.  However, his records contain a duly-constituted DD Form 214 which shows he was discharged at Fort Bragg on 1 May 1979, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  He had served
2 years, 2 months, and 17 days of total active service

7.  There is no evidence in the available records to show that he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

8.  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.

9.  Army Regulation 635-200 governs the policies and procedures 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.

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.  In the absence of evidence to the contrary, it must be presumed that the applicant’s voluntary request for separation under the provisions of Army
Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his records.  

3.  The applicant’s contentions have been considered; however, they are not sufficiently mitigating to warrant relief when compared to his undistinguished record of 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)                                         AR20090007534



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ABCMR Record of Proceedings (cont)                                         AR20090007534



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