IN THE CASE OF:
BOARD DATE: 20 October 2009
DOCKET NUMBER: AR20090009074
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, that his discharge under other than honorable conditions be upgraded.
2. The applicant states that his "crazy olady [was] going to have an abortion." He contends that there is no excuse for his actions other than he was a Soldier but he chose his family over others. He only asks for kindness so he can see a doctor.
3. The applicant provides no documentary evidence 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 applicants 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 applicants 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 on 1 October 1975 for a period of 3 years. On 17 October 1977, he was honorably discharged for immediate reenlistment. He reenlisted on 18 October 1977 for a period of 6 years.
3. The applicant went absent without leave (AWOL) on 3 June 1980 and returned to military control on 12 January 1981.
4. The facts and circumstances surrounding the applicants discharge are not contained in the available records. However, the applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions on 10 March 1981 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial. He had served a total of 4 years, 10 months, and 1 day of creditable active service with 223 days of lost time due to being AWOL.
5. There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of this 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. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
7. Army Regulation 635-200, 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 members 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.
8. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.
2. In the absence of evidence to the contrary, it must be presumed that the applicants separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, 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.
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