IN THE CASE OF:	  

		BOARD DATE:	  17 August 2010

		DOCKET NUMBER:  AR20100007813 


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 discharge under other than honorable conditions to a general discharge.

2.  The applicant did not state the reason for his request for an upgrade.

3.  The applicant provides no documentary evidence 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.  The applicant enlisted in the Regular Army for a period of 3 years on 18 April 1969.  Records show the applicant was 20 years of age at the time of his enlistment.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 76P (Stock Control and Accounting Specialist).  The highest grade the applicant attained was private first class/pay grade E-3.

3.  On 1 August 1969, the applicant received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 31 July 1969 to 1 August 1969.  The punishment consisted of a forfeiture of $29.00 pay.

4.  On 8 December 1969, the applicant was convicted by a summary court-martial for one specification of AWOL from 24 September 1969 to 7 November 1969.  The sentence consisted of a forfeiture of $50.00 pay for 1 month and confinement at hard labor for 15 days.

5.  On 22 September 1971, charges were preferred against the applicant for AWOL from 24 December 1969 to 31 August 1971.

6.  The applicant's entire separation packet is not available.  However, the second endorsement signed by the Commander, U.S. Army Personnel Control Facility, Fort Knox, Kentucky, and the third endorsement approving the discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations), signed by the Commanding General, U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, are included in the applicant's records.  Also included in the packet with the above mentioned endorsements is a self-authored statement by the applicant after he returned to military control.  The applicant states he definitely wants to get out of the Army and, if he stays in, he would probably go AWOL again and get himself into more trouble.  He also states that since he did not want to get into any more trouble, he wants to be discharged from the Army.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service with an under other than honorable conditions discharge on 7 December 1971.  The DD Form 214 shows the applicant held the rank of private/pay grade E-1 on the date of discharge and that he completed 7 months and 20 days of active military service.  The DD Form 214 also shows the applicant had 731 days of lost time.

8.  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.

9.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for AWOL over 30 days.
10.  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, the 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.  A discharge under other than honorable conditions would normally be furnished to an individual who was discharged for the good of the service.

	b.  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) prescribes the policies for correction of military records by the Secretary of the Army acting through the ABCMR.  This 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's request for an upgrade of his discharge was carefully considered.  Although the specific facts and circumstances surrounding the applicant's discharge processing are not available, the evidence does include a properly-constituted DD Form 214 that identifies that he was discharged in accordance with Army Regulation 635-200, chapter 10, and there is a presumption of government regularity attached to this document.

2.  The applicant did not submit a statement in requesting an upgrade of his discharge.  However, the applicant states in his request for discharge he definitely wants to get out of the military and if he stays in he probably would get into more trouble.  Therefore, carefully considering all the facts of the case, the type of discharge was proper and the characterization of service was equitable.

3.  In order to justify correction of 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 this requirement.  Therefore, in view of all of the above, there is no basis for granting the applicant's 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)                                         AR20100007813



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20