IN THE CASE OF:	  

		BOARD DATE:	  17 December 2009

		DOCKET NUMBER:  AR20090011324 


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 1976 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states he is “pending change in discharge status other than honorable to honorable.”  The applicant implies he should have had a hardship discharge.

3.  The applicant provides no additional evidence in support of his request.

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.  Records available to the Board indicate the applicant enlisted and entered active duty as a Regular Army Soldier on 26 July 1974.  In November 1974, while undergoing training, the applicant was promoted to pay grade E-2.

3.  In January and July 1975, while assigned to an air defense artillery unit, Fort Bliss, Texas, the applicant was punished three times under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to be at his appointed place of duty, disobeying an order, and for being absent without leave (AWOL).  He was ultimately reduced to pay grade E-1 as a result of misconduct.

4.  In November 1975, the applicant was reassigned to a supply company at Fort Devens, Massachusetts.  Between December 1975 and January 1976 he was punished twice under Article 15 of the UCMJ for failing to be at his appointed place of duty.

5.  In February 1976, the applicant’s unit commander initiated action to administratively discharge him for unfitness under the provisions of Army Regulation 635-200, chapter 13.  However, on 6 April 1976, prior to finalization of the administrative separation action, the applicant departed AWOL.  He ultimately returned to military control on 16 August 1976.

6.  The applicant was discharged, on 18 September 1976, under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial with an under other than honorable conditions discharge.  Documents associated with the chapter 10 discharge were not in the available records.

7.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for 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, at any time after the charges have been preferred, submit a request for discharge for the good of the service, in lieu of trial by court-martial.  An under other than honorable conditions discharge is normally considered appropriate.





9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be 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.  The evidence available to the Board indicates the applicant was pending administrative separation for misconduct when he departed AWOL in April 1976.  It appears that once the applicant returned from AWOL in August 1976, the decision was made to allow him to request a discharge in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10 rather than pursue the original discharge under the provisions of Army Regulation 635-200, chapter 13.

2.  In the absence of evidence to the contrary it is presumed the applicant's administrative separation was not accomplished in compliance with applicable regulatory guidance and there is no indication of procedural errors that would have jeopardized his rights.

3.  There is no evidence, and the applicant has not provided any, which indicates he should have been granted an honorable discharge based on hardship.

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)                                         AR20090011324



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011324



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1