BOARD DATE:	  15 June 2010

		DOCKET NUMBER:  AR20090021799 


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, in effect, upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he served with honor and he should have been discharged with an honorable discharge.

3.  The applicant provides no additional documentation 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.  On 28 December 1978, the applicant enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 11C (Indirect Fire Infantryman).

3.  On 1 July 1980, the applicant departed Fort Lewis, WA, for duty in the Federal Republic of Germany.  He was subsequently assigned to the 2nd Battalion,
48th Infantry Regiment, 3rd Infantry Division.

4.  On 5 March 1982, the applicant was promoted to the rank/grade of sergeant (SGT)/E-5.

5.  On 6 January 1983, a DA Form 4126-R (Bar to Reenlistment Certificate) was initiated by the applicant's commander.  It shows:

   a.  nonjudicial punishment (NJP) in October 1982 for wrongful operation of a government vehicle;
   
   b.  NJP in November 1982 for hitting a noncommissioned officer; and
   
   c.  that he had received many counseling statements for lateness, bad attitude, and non-performance of duty.

6.  The discharge packet is missing from the applicant's military records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was administratively discharged on 21 March 1983, under the provisions of Army Regulation 600-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  His service was characterized as under other than honorable conditions.  He had completed 4 years, 2 months, and 24 days of creditable active service.

7.  There is no indication that the applicant applied to the Army Discharge Review Board 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, 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.
11.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2-9, provides that the Board begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence.
DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that because he served with honor his discharge should be upgraded to honorable.

2.   In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of his discharge appears to be commensurate with his overall record.

3.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.

4.  The applicant's record of good service is diminished by the NJP's and many counseling statements that he received.  Accordingly, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

5.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.
6.  In view of the foregoing, the applicant's requested relief should be denied.

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)                                         AR20090021799



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ABCMR Record of Proceedings (cont)                                         AR20090021799



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