IN THE CASE OF:	

		BOARD DATE:	  1 April 2010

		DOCKET NUMBER:  AR20090017513 


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 discharge be upgraded.

2.  The applicant states that his discharge was based on one issue.  He also states that he entered the service in 1974 and had no legal or disciplinary problems prior to this incident; therefore, his total period of service should be taken into consideration.

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 California Army National Guard (CAARNG) on 
19 March 1974 and was involuntarily ordered to active duty on 15 November 1976 due to unsatisfactory participation.

3.  On 28 July 1977, the applicant accepted nonjudicial punishment (NJP) for being absent without leave (AWOL) from 7 July to 22 July 1977.

4.  On 29 September 1977, the applicant accepted NJP for leaving his appointed place of duty on 21 September 1977.

5.  On 29 September 1977, the applicant accepted NJP for failing to go to his appointed place of duty on five separate occasions between 23 August and
6 September 1977.

6.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the available evidence does include a properly-constituted DD Form 214 that contains the authority and reason for the applicant’s discharge on 16 December 1977.  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, 4 months, and 18 days of creditable active military service.  He also had 45 days of lost time.

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 service.

2.  The evidence of record shows that the applicant was involuntarily ordered to active duty for unsatisfactory participation in the CAARNG.  The evidence of record also shows the applicant received three Article 15s in less than a year while he was on active duty and he was discharged with an under other than honorable conditions discharge.  He also had 45 days of lost time due to being AWOL.  Therefore, his military service does not warrant an upgrade of his discharge to a general discharge under honorable conditions. 

3.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard provides that in the absence of evidence to the contrary, it must be presumed that the actions taken by the military were proper.  There was nothing presented by the applicant and there is nothing in the available records that overcomes this presumption.

4.  In view of the above, there is no basis for granting the applicant 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)                                         AR20090017513



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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