IN THE CASE OF:	  

		BOARD DATE:	  5 August 2010

		DOCKET NUMBER:  AR20100007539 


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 his under other than honorable conditions discharge be upgraded to an honorable discharge.  

2.  He states that he would like his discharge upgraded so he can obtain military benefits.  He waited a long time to request an upgrade because of the problems in his life.  He has been clean and sober for 20 years.  He feels his actions stem from his drug addiction which goes back to his days in the Army.  He is now disabled and has come to a turning point in his life.  He is asking to have his discharge upgraded so he can fulfill a promise to his dad to take care of this.  

3.  He provides a copy of his DD Form 214 (Report of Separation from Active Duty) and a Disabled American Veterans Contact Brief form.

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 24 March 1972. He completed training and was awarded military occupational specialty 36K (Field Wireman).  He was advanced to pay grade E-2 on 24 July 1972.  This is the highest grade he held during his period of service.  

3.  Between July 1972 and December 1973, he accepted punishment under Article 15, Uniform Code of Military Justice (UCMJ), for three instances of  being absent without leave (AWOL).

4.  He was again reported AWOL on 29 March 1974 and was returned to military control on 27 December 1974.

5.  All the documents containing the facts and circumstances surrounding his discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 which shows he was discharged on 20 February 1975, in pay grade E-1, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), 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 and he was issued an Undesirable Discharge Certificate.  He was credited with 2 years, 1 month, and 3 days of net active service and 294 days of lost time.

6.  There is no evidence he requested assistance through his chain of command for any personal problems which prevented him from completing his period of service.  His records are absent any evidence of awards for meritorious achievement or performance during his period of service.

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

8.  Army Regulation 635-200, then in effect, set forth the basic authority for separation of enlisted personnel.  Chapter 10 specified a member who had committed an offense or offenses for which the authorized punishment includes a punitive discharge may, at any time after the charges had been preferred, could submit a request for discharge for the good of the service in lieu of trial by court-martial.  An under other than honorable conditions was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

9.  Army Regulation 635-200, paragraph 3-7a, provided 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.  

10.  Army Regulation 635-200, paragraph 3-7b, provided 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.  He has not shown error, injustice, or inequity for the relief he now requests.

2.  His contentions have been considered; however, they do not support a change to his discharge.  He accepted punishment under Article 15 for three periods of AWOL.  Upon returning to military control from his last period of AWOL, it appears he voluntarily requested discharge in lieu of trial by court-martial.  By doing so, he waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.   

3.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his under other than honorable conditions discharge. The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or general discharge.

4.  Without evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.

5.  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)                                         AR20100007539





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ABCMR Record of Proceedings (cont)                                         AR20100007539



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