IN THE CASE OF:	

		BOARD DATE:	  6 April 2010

		DOCKET NUMBER:  AR20090017398 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant states that his county forgave the disgressions of those who fled to Canada or burned their draft cards but he completed his mission and he was told to stand down even though he had applied for an extension and had a spotless record until 5 June 1972. 

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 on 5 January 1970.

3.  The available evidence includes a:

   a.  DA Form 2627-1 (Record of Proceedings Under Article 15, UCMJ) showing he was absent without leave from 30 to 31 July 1970.

   b.  DD Form 268 (Report for Suspension of Favorable Personnel Action) showing he was AWOL from 5 July 1972 to 24 February 1973.

4.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for the applicant’s discharge on 14 March 1973.  The DD Form 214 shows he was discharged under the provisions of Chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), due to an administrative discharge - conduct triable by court-martial.  He was issued an Undesirable Discharge Certificate.  He completed a total of 2 years, 6 months, and 15 days of creditable active military service and he had 235 days of time lost.

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 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.

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.  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 available evidence shows the applicant received an Article 15 less than a year after he entered active duty.  

3.  The applicant's DD Form 214 shows he was discharged under the provisions of Chapter 10, due to an administrative discharge - conduct triable by court-martial.  He was issued an Undesirable Discharge Certificate.  He also had 235 days of lost time due to being AWOL.  Therefore, his military service does not warrant an upgrade.

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 evidence 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 that 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)                                         AR20090017398



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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