IN THE CASE OF:	

		BOARD DATE:	  5 January 2010

		DOCKET NUMBER:  AR20090011411 


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 the characterization of his service, under other than honorable conditions, indicated on his DD Form 214 (Report of Separation from the Armed Forces of the United States) be upgraded.

2.  The applicant states he was never allowed to present the reasons and circumstances to the board or group that was deciding his fate.  He states an officer advised him to just sign off on the discharge and not worry because by signing the chapter 10 request for discharge his record would be cleared.  He states he was lied to by all the officers.  He states he was absent without leave because his pregnant 17-year old wife had been thrown out of his parents' house after being accused of sleeping with his father.  The applicant states, in effect, that he tried to get leave approved so he could help his wife find a place to live.  He states he attempted to get help from his Texas Army National Guard (TXARNG) commander but he was unable to provide assistance and recommended the applicant turn himself in as soon as possible.  He states he returned to military control and worked as his captain's personal driver until his release from active duty.  He states he was told at the time that his record would be cleared because of the circumstances surrounding all that had occurred.  He returned to Fort Worth, TX, where his TXARNG commander issued him an honorable discharge from the TXARNG.

3.  The applicant provides copies of his DD Form 214; his National Guard Bureau (NGB) Form 22 (Report of Separation and Record of Service in the Army National Guard of Texas and as a Reserve of the Army), dated 1 August 1974; his orders for discharge from the TXARNG; a statement from his sister; three citations for bravery and a certificate for Deputy of the Year from Hood County, TX; four certificates of achievement and two citations for bravery as the Chief of Police, City of Pelican Bay; 17 certificates of completion for courses from 1983-2009 in the area of law enforcement; and an undated letter from the Chief Investigator, Hood County Sheriff's Department, 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.  In the processing of this case the ABCMR was unable to obtain the applicant's military service personnel records.  The only records available to the ABCMR (i.e., the applicant's DD Form 214, his NGB Form 22, and his orders for discharge from the TXARNG) were provided by the applicant.

3.  The applicant enlisted in the TXARNG on 29 October 1973 for a period of 6 years.  He was ordered to initial active duty for training on 28 December 1973.

4.  The facts and circumstances pertaining to the applicant's discharge are not on file.

5.  On 1 August 1974, the applicant was released from active duty by reason of conduct triable by court-martial and returned to the TXARNG.  He had completed 5 months and 6 days of active service that was characterized as under other than honorable conditions.  He had 59 days of lost time.

6.  On 1 August 1974, the applicant received an honorable discharge from the TXARNG by reason of inability to adjust to military life.

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.  The applicant provided a letter from his sister, dated 15 June 2009.  In her letter she states that her mother was jealous of all of her brothers' wives including the applicant's wife.  She states her mother attacked the applicant's wife by slapping and hitting her.  She also states her brother had to come home.

9.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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.  A discharge under other than honorable conditions was normally considered appropriate.

10.  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 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 clearly inappropriate.

11.  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.

12.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that the officers of his command all lied to him about the provisions of his discharge.  However, he has provided no evidence to substantiate his contentions.   


2.  He contends that he never was afforded the opportunity to present the reasons or circumstances of his misconduct to a board or group who were deciding his fate.  However, by requesting a discharge under the provisions of chapter 10 of Army Regulation 635-200, there is no board of officers to review the case.

3.  Although the applicant's separation packet is not available, in order for him to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have voluntarily requested discharge and acknowledged that he could receive an undesirable discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the characterization of service and the reason for separation were appropriate considering his overall record of service.

5.  In view of the foregoing, there is insufficient evidence to change the characterization of the applicant's service to honorable or general under honorable conditions.

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)                                         AR20090011411



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ABCMR Record of Proceedings (cont)                                         AR20090011411



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