BOARD DATE: 2 February 2010
DOCKET NUMBER: AR20090012781
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 "dishonorable" discharge be upgraded to a general discharge.
2. The applicant states that he is 100-percent disabled and he is unable to return to work. He indicates that Department of Veterans Affairs' records show he received an honorable discharge on 13 November 1971 and a general discharge on 15 September 1976.
3. The applicant does not provide any additional supporting documents.
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's military records show that he enlisted in the Regular Army on 26 June 1975 with 2 years, 7 months and 12 days of prior active service.
3. The applicant's discharge packet is not contained in his record. However, a second endorsement to the request for discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), dated 10 September 1976, is in his records. This endorsement approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Undesirable Discharge Certificate be issued to him.
4. Accordingly, the applicant was discharged and issued an Undesirable Discharge Certificate on 15 September 1976.
5. Army Regulation 635-200 sets forth the basic authority for the 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation, the regulation provided for the issuance of an Undesirable Discharge Certificate.
DISCUSSION AND CONCLUSIONS:
1. The nature of the applicant's offense which led to his request for discharge is not a matter of record.
2. However, the endorsement in his record confirms that the applicant requested discharge for the good of the service in lieu of trial by court-martial.
3. As such, a presumption of regularity must be applied in this case that what the Army did was correct. The burden to prove otherwise rests with the applicant.
4. The applicant has not provided any matters of mitigation for the Board to consider in his request.
5. As such, there is no basis for granting his 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) AR20090012781
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ABCMR Record of Proceedings (cont) AR20090012781
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