IN THE CASE OF:	  

		BOARD DATE:	  8 July 2010

		DOCKET NUMBER:  AR20100000176 


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 an upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states he was led to believe his discharge would be changed to a general discharge after 6 months from the date of discharge or he would not have taken the discharge.  He would like to stay a proud veteran as he thought he was.  He was young and made some mistakes and asks to be forgiven.

3.  The applicant provides no additional documentation 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's military records show he enlisted in the Army Delayed Entry Program on 14 September 1978.  He enlisted in the Regular Army in pay grade E-1 on 18 September 1978 for 3 years.  He completed training and he was awarded military occupational specialty 13F (Fire Support Specialist).  He was advanced to pay grade E-3 on 1 August 1979, the highest rank he held during his period of service.

3.  On 29 November 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for absenting himself from his place of duty from 27 to 28 November 1979.  His punishment was a reduction to pay grade E-2 (suspended 90 days) and 7 days of extra duty.

4.  On 19 December 1979, the applicant accepted NJP under Article 15, UCMJ, for failing to go to his appointed place of duty on 18 December 1979.  His punishment was a forfeiture of $100.00 (suspended), correctional custody for 5 days (suspended for 90 days), and 14 days of extra duty.

5.  On 10 January 1980, the applicant's suspension of punishment of forfeiture of $100.00 was vacated and duly executed.  His punishment of correctional custody was set aside.

6.  On 12 February 1980, a DD Form  458 (Charge Sheet) was prepared by the Commander, U.S. Army Personnel Holding Detachment (Provisional), U.S. Army Garrison, Fort Lewis, Washington.  The applicant was charged with one specification of absence without leave (AWOL) from 28 December 1979 to 6 February 1980.

7.  On 19 February 1980 after consulting with counsel, the applicant voluntarily requested discharge for the good of the service under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Separations).  In doing so, he acknowledged that he might be discharged with a bad conduct or dishonorable discharge.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate and as a result of the issuance of such a discharge, he may be deprived of many or all Army benefits and that he may be ineligible for many or all benefits administered by the Veteran's Administration.  He waived his rights and elected to submit a statement in his own behalf.

8.  In a statement, dated 19 February 1980, the applicant stated, in effect, he requested to be discharged because he could not adapt to the military way of life anymore and had personal family problems.  He could no longer work with the opposite race and he did not think the Army had given him a fair chance in the time he had served.  The Army had placed a great mental strain on him and did not think he could handle it any longer.

9.  On 19 and 28 February 1980, the applicant's battalion-level and brigade-level commanders recommended approval of the applicant's request and recommended he be issued an Under Other Than Honorable Conditions Discharge Certificate.

10.  On 7 March 1980, the appropriate authority approved the applicant's request for discharge for the good of the service and directed he be reduced to pay 
grade E-1 and an Under Other Than Honorable Conditions Discharge Certificate be issued.

11.  The applicant was discharged on 13 March 1980 in pay grade E-1 under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.  He was credited with 1 year, 4 months, and 9 days of total active service and lost time from 6 through 11 February 1979, 27 November 1979, and 28 December 1979 through 5 February 1980 due to AWOL.

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges had been preferred.  Although an honorable or general discharge was authorized, an under other than honorable conditions discharge was normally considered appropriate. 

14.  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, the applicant is not entitled to an upgrade of his under other than honorable conditions discharge.  

2.  The evidence of record shows the applicant was punished under Article 15, UCMJ, on two occasions.  He departed AWOL on 28 December 1979 and returned to military control on 6 February 1980.  Upon his return from AWOL, he voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged that he could be discharged under other than honorable conditions and furnished an Under Other Than Honorable Conditions Discharge Certificate.

3.  The applicant has provided insufficient evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the characterization of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant's misconduct diminished the quality of his service below that meriting an upgrade of his discharge.

4.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed and it appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  

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

6.  In order to justify correction of a military record, the applicant must show or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  In view of the foregoing, 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)                                         AR20100000176



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)