IN THE CASE OF:
BOARD DATE: 3 November 2009
DOCKET NUMBER: AR20090009745
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.
2. The applicant states, in effect, that he was told by a Department of Veterans Affairs representative that he could get his discharge upgraded after six months. He contends that he was never offered any help with his alcohol or drug problem but was only given a disciplinary report and discharged.
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 8 December 1980 for a period of 3 years. He successfully completed One Station Unit Training in military occupational specialty 16J (defense acquisition radar operator).
3. On 4 August 1981, nonjudicial punishment was imposed against the applicant for possessing marijuana and damaging Government property. His punishment consisted of a forfeiture of pay (suspended).
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 16 September 1982 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 served a total of 1 year, 9 months, and 9 days of creditable active service.
5. There is no evidence of record which shows the applicant was diagnosed with alcohol abuse or dependency prior to his discharge.
6. 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.
7. 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.
8. 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.
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 Soldiers separation specifically allows such characterization.
10. The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges. Each case is decided on its own merits when an applicant requests a change in discharge. Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.
DISCUSSION AND CONCLUSIONS:
1. A discharge upgrade is not automatic.
2. Although the applicant contends that he had an alcohol and drug problem while in the Army, there is no evidence of record which shows that he was diagnosed with alcohol or drug abuse or dependency prior to his discharge or that he referred himself for treatment of these problems.
3. 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.
ABCMR Record of Proceedings (cont) AR20090009745
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ABCMR Record of Proceedings (cont) AR20090009745
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