IN THE CASE OF:	  

		BOARD DATE:	  23 February 2010

		DOCKET NUMBER:  AR20090013622 


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 under other than honorable conditions discharge.

2.  The applicant states that he did not have nor did he receive the proper legal advice.  He also states that he was placed in a room and given a piece of paper to sign for the good of the service, not knowing the legal ramifications.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army (RA) on 15 November 1977.

3.  On 10 July 1978, the applicant accepted nonjudicial punishment (NJP) for failing to go at the time prescribed to his appointed place of duty on 6 July 1978.  His imposed punishment was a forfeiture of $50.00 per month for one month, and restriction and extra duty for 14 days.

4.  On 7 September 1978, the applicant accepted NJP for absenting himself without authority from his unit from 5 September 1978 to 6 September 1978.  His imposed punishment was reduction to the rank/grade of private (PV1)/E-1, forfeiture of $50.00 per month for two months, and correctional custody at the Correctional Custody Facility for 30 days.

5.  The applicant's record contains copy of a DA Form 3836 (Notice of Return of U.S. Army Member from Authorized Absence) which shows that he was reported absent from his unit on 17 October 1978, he was dropped from the rolls (DFR) of the Army on 17 November 1978, and he surrendered to military authorities at Fort Bragg, NC on 15 January 1980.

6.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the evidence of record does include a properly-constituted DD Form 214 that contains the authority and reason for the applicant’s discharge on 14 February 1980, in the rank/grade of PV1/E-1.  The DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of administrative discharge - conduct triable by court-martial, with an under other than honorable conditions discharge.  The DD Form 214 he was issued confirms he completed a total of 1 year and 1 day of creditable active military service and he had 456 days of time lost.

7.  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.

8.  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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

9.  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.

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.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant‘s discharge.

2.  The evidence of record shows that the applicant was discharged with an under other than honorable conditions discharge and had 456 days of lost time due to AWOL.  Therefore, his service does not warrant an upgrade of his discharge to either a general, under honorable conditions or an honorable discharge. 

3.  There is no evidence in the applicant’s record and the applicant did not provide any evidence to show that he was not provided legal representative or that he was placed in a room and forced to sign documents without due process.

4.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is nothing presented by the applicant or in the available records that overcomes this presumption.

5.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

6.  In view of the above, 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)                                         AR20090013622



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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