IN THE CASE OF:	

		BOARD DATE:	15 April 2010  

		DOCKET NUMBER:  AR20090016193 


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 under other than honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states that he used bad judgment and made bad decisions in his youth.  He states he has matured and through self rehabilitation become a better citizen.

3.  The applicant provides no additional documentation.

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 he enlisted in the Regular Army on 13 October 1976.  He was awarded the military occupational specialty of motor transport operator.  The highest rank/grade he held during his tenure of service was private first class (PFC)/E-3.

3.  The available records do not show any significant acts of achievement or valor during his military service.

4.  Records show that the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on three occasions between 2 February and 12 October 1977.

5.  On 16 May 1978, charges were preferred against the applicant for being absent without leave (AWOL) during the period 17 April to 16 May 1978.

6.  While the applicant's discharge packet is not available, his DD Form 214 (Report of Separation from Active Duty) shows that on 29 September 1978 he was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations) in lieu of trial by court-martial.  He was furnished an Other Than Honorable Conditions Discharge Certificate.  His DD Form 214 shows he completed 1 year, 6 months, and 21 days of active military service.  His records show he had 147 days of lost time due to being AWOL.

7.  There is no indication that the applicant applied to the Army Discharge Review Board 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 the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  At the time, a discharge under other than honorable conditions was 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, 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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  Records show that the applicant accepted nonjudicial punishment on three occasions.

2.  Even though the applicant's records do not contain his discharge packet, the evidence indicates he was voluntarily discharged under the provisions of Army Regulation 635-200 in lieu of trial by court-martial.  In order to be discharged under chapter 10, the applicant would have admitted guilt and requested discharge in lieu of court-martial.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's records show he had a total of 147 days of lost time due to being AWOL.  He has not provided any evidence to mitigate the actions he took during his period of active service; therefore, he has not established a basis to justify upgrading his discharge.

5.  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)                                         AR20090016193



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ABCMR Record of Proceedings (cont)                                         AR20090016193



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