IN THE CASE OF:	

		BOARD DATE:	  4 February 2010

		DOCKET NUMBER:  AR20090012473 


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 general, under honorable conditions discharge to an honorable discharge.

2.  The applicant states he was told by his commanding officer he would be honorably discharged due to a hardship at his home so he could reenter the Army, but that is not what happened.  He also contends his son was left by his mother and his request for relocation was denied, but he did not want to leave the Army.  He further claims he is not looking to gain anything from an upgraded discharge, but he was a dedicated troop and is a proud veteran who is ashamed of his discharge.

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of this 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.  The applicant's military records show that he enlisted in the Regular Army (RA) on 1 November 1974.  He completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 63J (Quartermaster Light Equipment Repairman).  He then departed for a tour of duty in Hawaii on 9 March 1975.

3.  On 30 May 1975, the applicant's commanding officer informed him that he intended to take action to accomplish his separation from the U.S. Army under the provisions of paragraph 5-38 (Concealment of Arrest Record), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) for concealment of an arrest record at the time of his enlistment [forgery].  He also advised the applicant of his rights and informed him that if he received a general, under honorable conditions discharge he could encounter substantial prejudice in civilian life.  In his actual request for the applicant's discharge, his commanding officer indicated that the applicant brought the matter of his concealed arrest record to his attention, and that the applicant had expressed a desire to get out of the Army several times.  He also stated that the applicant's attitude seemed to have changed to the point that if he did not get out based upon his recommendation, he felt that the applicant would attempt some other method, and if kept on active duty, he felt that he would become a disciplinary problem and eventually become a candidate for discharge under the provisions of Army Regulation 635-200, chapter 13 (Separation for Unfitness or Unsuitability).

4.  On 6 June 1975, the applicant acknowledged that he had been advised by consulting counsel of the basis for the contemplated action to accomplish his discharge for concealment of an arrest record under the provisions of Army Regulation 635-200, chapter 5 (Separation for Convenience of the Government).  He waived consideration of his case and personal appearance before a board of officers and elected not to submit statements in his own behalf.  He also waived representation by military counsel.

5.  On 16 June 1975, the proper separation authority approved the applicant's separation under the provisions of Army Regulation 635-200, chapter 5, and directed that he be issued a general, under honorable conditions discharge.  On 27 June 1975, the applicant was discharged accordingly.

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

7.  Army Regulation 635-200, chapter 5, paragraph 5-38, in effect at the time, provided that enlisted personnel who concealed an arrest record which did not result in civil court conviction at the time of enlistment or induction may be discharged.  This policy permitted the elimination of personnel who represented a potential undesirable element and would be used only when it was clearly apparent that an individual had concealed a serious arrest record.  Individuals discharged under this provision were given either an honorable or general, under honorable conditions discharge.

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 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his general, under honorable conditions discharge should be upgraded to an honorable discharge.

2.  The applicant's contention that he was told by his commanding officer that he would be honorably discharged due to a hardship at his home so that he could reenter the Army was noted.  However, the applicant provided no evidence and there is no evidence in his military records which supports his contention.

3.  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.

4.  The evidence of record clearly shows that the applicant concealed an arrest record at the time of his enlistment, but that he voluntarily disclosed this fact to his commanding officer and expressed a desire to get out of the Army several times.  As a result of his concealment of his arrest record, he was properly discharged under regulations in effect at the time for this offense and issued a general, under honorable conditions discharge.  As he did not provide any evidence which shows that any requirements of law and regulation were not met, 
or that his rights were not fully protected throughout the separation process, regularity must be presumed in this case.  As a result, the applicant's discharge accurately reflects his overall record of service.

5.  Based on the applicant's concealment of an arrest record, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, 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)                                         AR20090012473



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090012473



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1