BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090018674 


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 his discharge under other than honorable conditions be upgraded.

2.  The applicant states he was ordered to sign out from the military without justifiable cause.

3.  The applicant provides numerous 2009 Department of Veterans Affairs (DVA) medical records 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 enlisted in the Regular Army on 18 November 1977.  On 27 January 1978, he was honorably discharged under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 5-39, the Trainee Discharge Program.  He had completed 2 months and 10 days of creditable active service.

3.  Item 26 (Military Service), sub-item 26a (Are you now or have ever been in the Regular, Reserve, or National Guard of the United States?), of his application for enlistment, dated 11 August 1978, shows he placed an "X" in the "No" block.  He enlisted in the Regular Army on 15 August 1978 for a period of 3 years.  He successfully completed one-station unit training and was awarded military occupational specialty 11B (infantryman).

4.  On 27 October 1978, nonjudicial punishment was imposed against the applicant for failing to obey a lawful order.  His punishment consisted of a forfeiture of pay (suspended) and extra duty.  On 30 October 1978, the suspended portion of the punishment was vacated.

5.  The facts and circumstances surrounding the applicant's discharge are not contained in the available records.  However, the applicant's DD Form 214 (Report of Separation from Active Duty) for the period ending 15 August 1979 shows he was discharged under other than honorable conditions on 15 August 1979 under the provisions of Army Regulation 635-200, chapter 14, for misconduct (fraudulent entry).  He had served a total of 1 year and 1 day of creditable active service.

6.  In support of his claim, the applicant provided numerous 2009 DVA medical records which show he was diagnosed with schizoaffective disorder, obesity, history of poly-substance abuse, hypothyroidism, hypertension, dyslipidemia, history of chronic normocytic anemia, and thrombocytopenia.

7.  There is no evidence that the applicant applied to the Army Discharge Review Board for 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.  At the time, chapter 14 set forth the policy for separation for misconduct.  The regulation provided, in pertinent part, for the separation of personnel for fraudulent entry into the Army.  Paragraph 14-4 of this regulation states that fraudulent entry is the procurement of an enlistment, reenlistment, or period of active service through any deliberate material misrepresentation, omission, or concealment which, if known and considered by the Army at the time of enlistment or reenlistment, might have resulted in rejection.  This includes all conditions that would have been disqualifying without a waiver.  

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was ordered to sign out from the military without justifiable cause.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant's separation on 15 August 1979 was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.

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)                                         AR20090018674



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090018674



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1