IN THE CASE OF:	

		BOARD DATE:	  8 June 2010

		DOCKET NUMBER:  AR20090020405 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge and restoration of his rank.

2.  The applicant states he was told at the time of his discharge it would upgraded to an honorable discharge and his rank would be restored 6 months after his departure.  He never checked his discharge until now and it remains the same.  It was an unjust act that was done to him at the time of his discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  His military records show he enlisted in the Regular Army on 8 September 1976.  He completed training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  The specific facts and circumstances surrounding his discharge process are not included in the available records.  However, his records contained a copy of his duly constituted DD Form 214 which shows he was discharged on 20 April 1979 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b(1), with an Under Other Than Honorable Conditions Discharge Certificate.  He was discharged in pay grade E-1 with a date of rank of 5 April 1979, which indicates he was reduced prior to his discharge.  He was also credited with completing 2 years, 7 months, and 13 days of net active service.

4.  There is no evidence he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

5.  Army Regulation 635-200, then in effect, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33b of the regulation established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absent without leave.  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 considered appropriate.  Upon determination that a member was to be separated with a discharge certificate under other than honorable conditions, the convening authority would direct reduction to the lowest enlisted grade.

6.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

7.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, he is not entitled to an upgrade of his discharge.  He has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.

2.  His discharge packet is not in the available records for review.  However, his record contains his DD Form 214 which he authenticated.  This document identifies the reason and authority for his discharge and the characterization of his service.  It appears his misconduct diminished the quality of his service to warrant a higher characterization of service than that which he was issued.

3.  The evidence also shows he was reduced in accordance with the provisions of the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He has provided no evidence showing he was unjustly reduced to pay grade E-1 prior to his discharge and as a result of this discharge.  Therefore, he is also not entitled to restoration of his rank and correction of his DD Form 214 to show any rank/grade other than private (PV1)/E-1.

4.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

5.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge and restoring their rank after 6 months or any other passage of time.

6.  In order to justify correction of a military record, he must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  He has failed to submit evidence that would satisfy this requirement.  In view of the foregoing, there is no basis for granting his 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)                                         AR20090020405



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ABCMR Record of Proceedings (cont)                                         AR20090020405


   
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