IN THE CASE OF:	  

		BOARD DATE:	      1 OCTOBER 2009

		DOCKET NUMBER:  AR20090007798 


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 a general, under honorable conditions discharge.

2.  The applicant states that he was mentally disturbed. 

3.  The applicant provides copies of his medical record from the Florida Department of Corrections 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 records show he enlisted in the U.S. Army Reserve (USAR) for a period of 6 years on 21 April 1977.

3.  On 7 November 1977, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ for wrongfully possessing one gram, more or less, of marijuana on or about 4 November 1977.  His punishment consisted of a forfeiture of $198.00 pay for 2 months, and 45 days of restriction and extra duty.

4.  His records also show he failed to fulfill the satisfactory participation requirements of his USAR obligation on several occasions.  As a result, Headquarters, First U.S. Army, Fort George G. Meade, MD Orders 10-21, dated 18 January 1979, released the applicant from his Reserve unit and ordered him to involuntary active duty service, assigned to the U.S. Army Reception Station, Fort Jackson, SC, with a reporting date of 4 March 1979.  His active duty commitment was established as 18 months and 15 days.  He completed basic combat and advanced individual training and he was subsequently assigned to Fort Polk, LA in military occupational specialty (MOS) 64C (Motor Transport Operator).

5.  On 7 August 1979, the applicant departed his unit in an absent without leave (AWOL) status.  He returned to his unit on 9 August 1979.

6.  The facts and circumstances surrounding the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 14 September 1979 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with a character of service of under other than honorable conditions.  This form also shows he completed 6 months and
9 days of creditable active service during this period of service, with 2 days of lost time.

7.  There is no indication in the applicant’s records that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s    
15-year statute of limitation.

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, 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 contends that his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge.

2.  The applicant’s record is void of the facts and circumstances that led to his voluntary discharge.  However, his record contains a properly constituted 
DD Form 214 that shows he was discharged on 14 September 1979 under the provisions of chapter 10 of Army Regulation 635-200, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by a court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during this period of service.   

4.  There is no evidence in the available records, nor did the applicant provide documentation, to warrant an upgrade of his discharge.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the 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.



      ___________XXX___________
               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)                                         AR20090007798



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ABCMR Record of Proceedings (cont)                                         AR20090007798



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