IN THE CASE OF:	

		BOARD DATE:	24 September 2009  

		DOCKET NUMBER:  AR20090008604 


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.  He also requests that his dates of lost time be corrected.

2.  The applicant states that it is his understanding that his discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10 (Discharge for the Good of the Service), will be upgraded to a general, under honorable conditions discharge after 6 months from the time of discharge.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 6 November 1979, the applicant enlisted in the Regular Army (RA) in Montgomery, AL, for 3 years in the pay grade of E-1.  He successfully completed his training as a materiel supply specialist.  On 1 September 1980, his materiel supply specialist military occupational specialty (MOS) was withdrawn, and he was awarded an MOS as an equipment records and parts specialist.

3.  The available records show that the applicant was absent without leave (AWOL) from 6 March 1980 through 9 March 1980; however, the punishment that was imposed against him for this offense is not in the available records.

4.  The applicant was on ordinary leave when he went AWOL on 29 October 1980 and he remained absent until he returned to military control on 2 December 1980.  The punishment that was imposed against him for this offense is not in the available records.  However, on 22 January 1981 he was convicted by a special court-martial of being AWOL from 3 November 1980 until 7 November 1980.  He was sentenced to a reduction to the lowest enlisted grade, a forfeiture of pay in the amount of $150.00, and 14 days of hard labor without confinement.

5.  Nonjudicial punishment (NJP) was imposed against the applicant on 25 September 1981 for being disrespectful in language towards his superior noncommissioned officer.  His punishment consisted of a reduction in pay grade, a forfeiture of pay in the amount of $130.00, and 14 days of restriction and extra duty.

6.  On 2 June 1982, the applicant was notified that charges were pending against him for being AWOL from 1 February 1982 through 24 May 1982.

7.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the available records show that along with a request for discharge under the provisions of Army Regulation 
635-200, chapter 10, the applicant, during an interview with his commanding officer, stated that he was aware of the consequences of a discharge under other than honorable conditions.  During the interview the applicant stated that he went AWOL after he realized that his family could not be with him and that when he enlisted, he was under the impression that his family could be with him during his service.  The applicant stated during his interview that he had NJP imposed against him on four occasions and that he had been convicted by a special court-martial on one occasion.

8.  The appropriate authority approved the request for discharge on 27 July 1982 and directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 9 August 1982, the applicant was discharged under other than honorable conditions, 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 2 years, 4 months, and 3 days of net active service.

9.  The DD Form 214 that the applicant was furnished at the time of his discharge shows his dates of time lost during this period as “800306-800309; 801029-801201; 820201-820524.”

10.  On 13 April 1993, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 26 March 1996, the ADRB denied his request.

11.  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.

12.  Paragraph 3-7a of Army Regulation 635-200 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.

13.  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 under other than honorable conditions discharge should be upgraded to an honorable discharge as it was his understanding that it would be automatically upgraded to a general, under honorable conditions discharge 6 months after his date of  discharge.

2.  The applicant's contentions were considered.  However, his contentions are not sufficiently mitigating to warrant the relief requested.

3.  The applicant's record is void of the facts and circumstances surrounding his discharge.  It appears that he was charged with the commission of offenses punishable under the Uniform Code of Military Justice (UCMJ) with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The 
applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant’s discharge accurately reflects his overall record of service.  There is also no evidence in the available record, nor has the applicant submitted any evidence to show, that he was told that his discharge would be upgraded 6 months after his date of discharge.

4.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial and it appears that he simply had no desire to be in the Army.  The type of discharge directed properly reflects his overall record of service.

5.  The Army does not have nor has it ever had a policy that provides for the
automatic upgrade of a discharge based on the passage of time.  A discharge
may be upgraded by the ADRB or this Board if either determines the discharge
was improper or inequitable.  A review of this case reveals no evidence that
suggests there was any error or injustice related to the applicant's
separation processing.  Therefore, it is concluded his discharge was proper
and equitable and it accurately reflects the applicant's overall record of
service.  As a result, there is an insufficient evidentiary basis to support upgrading the applicant's discharge to a general or an honorable discharge.

6.  His records show that he had NJP imposed against him while he was in the Army and he was convicted by a special court-martial as a result of his acts of indiscipline.  Considering his overall records of service it does not appear that the type of discharge that he received is too harsh.

7.  Additionally, in regard to the applicant's request that his dates of lost time be corrected, his DD Form 214 currently shows his dates of time lost during this period as “800306-800309; 801029-801201; 820201-820524.”  His records 


indicate that he had more lost time than currently reflected on his DD Form 214.  To make this correction would be less advantageous to the applicant and it is not the practice of the Board to knowingly do so.

8.  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.

9.  In view of the foregoing, 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)                                         AR20090008604



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ABCMR Record of Proceedings (cont)                                         AR20090008604



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