BOARD DATE:	  16 March 2010

		DOCKET NUMBER:  AR20090016376 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states, in effect, that while he was in the military he received several awards and that he loves America.  He also states that he got into a fight with a sergeant over a woman and got kicked out of the Army but he continues to work as a heavy diesel mechanic.

3.  The applicant provides a copy of a certificate, dated 1 July 1988, for completion of 366 hours of instructions for the Fundamentals of Air Conditioning and Refrigeration in support of his 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 initially enlisted in the Regular Army on 29 May 1984.

3.  On 6 May 1985, the applicant accepted nonjudicial punishment (NJP) for failure to go to his appointed place of duty.  His punishment included extra duty, restriction, and reduction to the rank of private/E-1. 

4.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  The evidence does include a properly constituted DD Form 214, dated 1 October 1987, that contains the authority and reason for discharge.  The DD Form 214 was authenticated by the applicant.  The DD Form 214 shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14 with an under other than honorable conditions discharge due to a pattern of misconduct.  He completed a total of 
3 years, 4 months and 3 days of creditable active military service.

5.  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.

6.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

7.  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.



8.  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.  There is no evidence in the applicant’s record and the applicant did not provide any evidence that shows he was discharged because of a fight with a sergeant over a girl.  The evidence shows that he received NJP for failure to go to his appointed place of duty.  The evidence also shows the applicant was issued an under other than honorable conditions discharge due to commission of a pattern of misconduct.  

2.  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 reason and the characterization of his service.  

3.  The applicant is commended for completing 366 hours of post service instruction.  However, it is not sufficient to grant the relief requested. 

4.  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. 

5.  This Board operates under the standard of presumption of government regularity.  This standard states, in effect, that in the absence of evidence to the contrary it is presumed that the actions taken at the time were proper.  There was nothing presented by the applicant nor was there anything in the available records that overcomes this presumption.

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)                                         AR20090016376



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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