IN THE CASE OF:	  

		BOARD DATE:	  21 January 2010

		DOCKET NUMBER:  AR20090013020 


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 1975 discharge under other than honorable conditions be upgraded.

2.  The applicant makes no statement. 

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 in the Regular Army and entered active duty on 11 June 1974.  He was 20 years old at the time of his enlistment.

3.  Shortly after arriving for basic combat training at Fort Knox, Kentucky, the applicant commenced a series of periods of absence without leave (AWOL) which ultimately resulted in charges being preferred on 16 September 1975 for three periods of AWOL (22 July 1974 through 16 October 1974, 18 November 1974 through 19 December 1974, and 23 May 1975 through 11 September 1975).

4.  On 17 September 1975 after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, in lieu of trial by court-martial.  In doing so, he acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Discharge Certificate and as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits and that he could be ineligible for many or all benefits administered by the Veterans Administration.  He elected not to submit a statement in his own behalf and he was placed in an excess leave status effective 17 September 1975.

5.  On 29 September 1975 the appropriate authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial and directed that an Under Other Than Honorable Conditions Discharge Certificate be issued.

6.  The applicant was discharged on 21 October 1975 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as under other than honorable conditions.  He was credited with completing 8 months and 25 days of total active service.

7.  On 20 May 1982 the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

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 applicant's military service records show that he voluntarily requested discharge for the good of the service in lieu of trial by court-martial and acknowledged guilt of the charges against him.  There is no evidence to indicate 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.

2.  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)                                         AR20090013020



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ABCMR Record of Proceedings (cont)                                         AR20090013020



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