IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20090021774 


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.

2.  The applicant states he was originally told he could get a chapter 13, finish out his enlistment, and receive an honorable discharge.  Instead, he chose a chapter 10 with an under other than honorable conditions discharge.  He states he was good stract (sic) Soldier.  He further states he was straight out promised by the Army that his discharge would be changed automatically after 6 months from an under other than honorable conditions discharge to an honorable discharge.

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 29 November 1976.

3.  The applicant was punished under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:

* 25 September 1977 for failing to obey a lawful order
* 9 June 1978 for failing to be at the time prescribed to his appointed place of duty and failing to obey a lawful order
* 2 February 1978 for being absent without leave (AWOL) on 21 January 1978
* 21 February 1978 for missing movement

4.  The applicant's record contains two DA Forms 268 (Report of Suspension of Favorable Action) which show the following:

* 3 January 1979 for being reported as AWOL as of 26 December 1978
* 27 January 1979 for being dropped from the rolls (DFR) as of 25 January 1978

5.  The applicant's record contains a DA Form 4187 (Personnel Action), dated 26 June 1979, which indicates the applicant surrendered to military authorities at Fort Ord, CA on 24 June 1979.

6.  The evidence of record also contains a Disposition Form 2496, Subject:  Request for Discharge for the Good of the Service, dated 13 July 1979, which shows the applicant submitted a request for discharge in lieu of trial by court-martial due to his being AWOL from 26 December 1978 to 24 June 1979.  There is no DD Form 458 (Charge Sheet) available for review.

7.  The specific facts and circumstances surrounding the applicant’s discharge processing are not available for review.  However, the evidence does include a properly-constituted DD Form 214 (Report of Separation from Active Duty) for the period ending 27 July 1979 that contains the authority and reason for the applicant’s discharge.  It shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, with issuance of an Under Other Than Honorable Conditions Discharge Certificate.  It also shows he was issued a separation program designator (SPD) code of "JFS," by reason of administrative discharge - conduct triable by court-martial.
8.  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.

9.  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.

10.  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.

11.  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.  There is no evidence that shows the applicant was being discharged under the provisions of Army Regulation 635-200, chapter 13.  The evidence of record shows the applicant requested a voluntary discharge under the provisions of Army Regulation 635-200, chapter 10, after he returned from his extended absence.


3.  The evidence of record also shows the applicant received four Article 15 NJP actions and he was discharged with an under other than honorable conditions discharge.  Therefore, his military service does not warrant an upgrade of his discharge to an honorable or a general discharge.

4.  The Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.

5.  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 no evidence presented by the applicant and there is none in the available records that overcomes this presumption.

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)                                         AR20090021774



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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