IN THE CASE OF:	

		BOARD DATE:	 22 April 2010 

		DOCKET NUMBER:  AR20090016101 


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 discharge to honorable.

2.  The applicant states he would like the discharge upgraded so that he can receive Department of Veterans Affairs benefits.

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 and entered active duty on 29 July 1969.  He completed basic training, but was removed from advanced individual training (AIT) as a utility helicopter repairer because of misconduct and was reassigned.

3.  He completed AIT in health care administration, but was then absent without leave (AWOL) from 4 March 1970 to 7 May 1973.

4.  An August 1973 investigating officer's report indicates that the applicant was arrested while on leave, convicted, and incarcerated for automobile theft.  Upon parole by the State of Georgia, he was turned over to the Army.

5.  When charges were preferred for the AWOL offense and another AWOL period from 4 June 1973 to 22 July 1973, the applicant apparently consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial.  The documents relating to the separation processing are not contained in the available records.

6.  On 27 September 1973, the applicant was discharged under other than honorable conditions.  In 4 years, 1 month, and 29 days of affiliation, he had only 9 months and 19 days of creditable service.

7.  There is no available evidence that he applied to the Army Discharge Review Board during the 15-year period of eligibility.

8.  Army Regulation 635-200 (Personnel Separations) 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.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice (UCMJ).  A punitive discharge is authorized for any AWOL offense of 30 days or more.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9 (Burden of Proof), states, "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."

11.   Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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.  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 states he would like the discharge upgraded so that he can receive Department of Veterans Affairs benefits.

2.  The regulations governing the Board’s operation require that the discharge process be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  However, the applicant, who had 9 months and 19 days of creditable service out of more than 4 years in the Army, clearly does not deserve anything but an other than honorable discharge.

3.  The character of the discharge is commensurate with the offense for which the applicant was discharged and his overall record of military service.

4.  Although the discharge packet is not of record, the evidence of record shows that the applicant was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have had to have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, the applicant would be required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  Included in the chapter 10 requirements at that time was a requirement that the applicant admit guilt to the charged offenses under the UCMJ or lesser-included charges.  In the absence of information to the contrary, the Board is required to presume all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

5.  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)                                         AR20090016101



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ABCMR Record of Proceedings (cont)                                         AR20090016101



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