BOARD DATE:	  1 July 2010

		DOCKET NUMBER:  AR20090021991 


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.

2.  The applicant states that the incidents surrounding the type of discharge he received occurred when he was much younger.  He adds that he has changed his life and requests the Board grant his request for upgrade of his discharge.

3.  The applicant provides no additional documentary evidence in support of his request.

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 and entered active duty in the Regular Army (RA) for a period of 3 years on 7 August 1968.  At the time the applicant was 18 years of age.  Upon completion of training, he was awarded military occupational specialty 76Y (Unit Supply Specialist).

3.  A DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows the applicant was honorably discharged on 15 January 1970 to immediately reenlist.  At the time he had completed 1 year, 5 months, and
9 days of net active service.

4.  The applicant reenlisted in the RA for a period of 6 years on 16 January 1970.

5.  A DA Form 20 (Enlisted Qualification Record) shows in item 31 (Foreign Service) that he was assigned overseas in Thailand from 12 February 1969 through 27 June 1970 and in Vietnam from 27 May 1971 through 27 April 1972.

6.  At a special court-martial in February 1972, the applicant pled guilty to the charge of violation of the Uniform Code of Military Justice (UCMJ), Article 86, with two specifications of absenting himself from his unit from 23 December 1971 to 13 January 1972 and from 16 January 1972 to 5 February 1972.

   a.  He was found guilty of the charge and the two specifications.

   b.  He was sentenced to be reduced to private (E-2) and forfeiture of $100 per month for six months.

   c.  On 23 March 1972, the convening authority approved the sentence and ordered it duly executed.

7.  On 12 December 1972, the applicant received nonjudicial punishment (NJP) under Article 15, UCMJ, for being absent without leave (AWOL) from 17 July to
4 October 1972.  His punishment consisted of reduction to private (E-2) (suspended for 30 days), forfeiture of $50 per month for two months, 14 days of restriction (the last 7 days suspended for 30 days), and 14 days of extra duty (the last 7 days suspended for 30 days).

8.  A DA Form 3835 (Notice of Unauthorized Absence from United States Army), dated 5 December 1973, shows the applicant departed AWOL on 6 November 1973 and he was dropped from the rolls effective 5 December 1973.

9.  A DA Form 3836 (Notice of Return of U.S Army Member from Unauthorized Absence), dated 12 February 1974, shows the applicant was apprehended by civil authorities in Franklinton, NC, on 8 February 1974, and returned to military control.

10.  The applicant's military personnel records are absent a copy of his administrative separation packet.

11.  United States Army Personnel Control Facility Detachment, Headquarters Command XVIII Airborne Corps and Fort Bragg, NC, Unit Orders Number 30, dated 13 March 1974, reduced the applicant to private (E-1) effective 8 March 1974 based on his discharge under the provisions of Army Regulation 635-200 [Personnel Separations - Enlisted Personnel].

12.  Headquarters, XVIII Airborne Corps and Fort Bragg, NC, Special Orders Number 61, dated 28 March 1974, discharged the applicant under conditions other than honorable effective 28 March 1974.

13.  The applicant's DD Form 214 (Report of Separation from Active Duty) shows he was discharged on 28 March 1974 in accordance with the provisions of Army Regulation 635-200, paragraph 10-1, with service characterized as under other than honorable conditions.  At the time he had completed 3 years, 5 months, and 29 days of net active service this period and he had 254 days of time lost.

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

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.  

   b.  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.

16.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR 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 his under other than honorable conditions discharge should be upgraded to a general discharge under honorable conditions because he was much younger at the time of the incidents that led to his discharge.

2.  Considering that the applicant had demonstrated the capacity for satisfactory service by the completion of training and his honorable discharge for immediate reenlistment after completing more than 1 year and 5 months of active duty, his contention is not supported by the evidence of record.  In addition, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Thus, the applicant's contention is not sufficiently mitigating to warrant relief.  

3.  Absent evidence to the contrary, it is presumed that the applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was warranted by the gravity of the offenses for which he was charged.  It is also presumed that it was voluntary, administratively correct, all requirements of law and regulations were met, and the rights of the applicant were fully protected throughout the separation process.

4.  Records show the applicant went AWOL on four different occasions and he had a total of 254 days (i.e., more than 8 months) of time lost.  Thus, the applicant's overall quality of service during the period of service under review was not satisfactory and he is not entitled to a general discharge under honorable conditions.

5.  There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial credible evidence to rebut the presumption.  The applicant fails to provide such evidence.  Therefore, 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)                                         AR20090021991



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ABCMR Record of Proceedings (cont)                                         AR20090021991



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