IN THE CASE OF:	  

		BOARD DATE:	  26 August 2010

		DOCKET NUMBER:  AR20100009384 


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 an honorable discharge.

2.  The applicant states his first period of service was honorable.  He was in an absent without leave (AWOL) status for family issues.  His wife was pregnant and she did not have anyone to take care of her.  His Fort Bragg, NC unit was scheduled to deploy to Texas and he did not have anyone to take care of his wife.  When he got the family issues resolved he turned himself in.  By doing so he was trying to correct a problem in his life.  His first period of service should be considered and given some credibility.  

3.  The applicant provides the following documents:

* State Criminal Records
* Three character reference letters or letters of recommendation
* National Archives and Records Administration (NA) Form 13038 (Certification of Military Service)
* DD Form 214 (Report of Separation from Active Duty)

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 records show he enlisted in the Regular Army (RA) on 29 February 1972 for 3 years and he held military occupational specialty 13B (Cannon Crewmember).  He was reassigned to Germany on 20 July 1972.  While in Germany, he was honorably discharged on 29 September 1974 for the purpose of immediate reenlistment.

3.  He executed a 4-year reenlistment in the RA on 30 September 1974 for a station of choice assignment to Fort Bragg.  He subsequently departed Germany on 21 November 1974 for reassignment to Fort Bragg.  The highest rank/grade he attained during this period of service was specialist four (SP4)/E-4.

4.  On 14 November 1975, he was convicted by a special court-martial of two specifications of striking a noncommissioned officer (NCO).  The court sentenced him to a reduction to private first class (PFC)/E-3 and a forfeiture of $100.00 pay per month for 3 months.  The convening authority approved the sentence on
1 December 1975.

5.  His records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

* On 9 January 1976, for failing to go at the time prescribed to his appointed place of duty
* On 10 January 1977, for being disrespectful in language toward a superior NCO and disobeying a lawful order
* On 15 August 1977, for failing to obey a lawful order
* On 28 March 1978, for twice failing to go at the time prescribed to his appointed place of duty and being disrespectful toward a superior NCO

6.  On 29 April 1978, he departed his unit in an AWOL status and on 28 May 1978, he was dropped from the rolls (DFR) of the Army.  He ultimately surrendered to military authorities on 26 June 1978 at Fort Bragg.

7.  The facts and circumstances of his discharge are not available for review with this case.  However, his records contain the following documents:

	a. Orders 150-18, issued by Headquarters, 1st Corps Support Command, Fort Bragg, reassigning him to the U.S. Army Separation Transfer Point, effective 8 August 1978.

	b.  A properly-constituted DD Form 214 that shows he was discharged on 8 August 1978 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of a court-martial, with a character of service of under other than honorable conditions.  He completed a total of 6 years, 3 month, and 4 days of creditable active service, with 66 days of time lost.

8.  There is no indication he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitation.

9.  He provides copies of his criminal record and three character reference letters as follows:

	a.  His State Criminal Record shows he was arrested, charged, convicted, or sentenced for various infractions including attempting to break or enter, possession of burglary tools, common law robbery, forgery, second degree rape, and felony incest.

	b.  Character reference letter, dated 17 November 2009, from a senior project manager who worked with the applicant.  The manager describes the applicant as a friendly, good-natured, and proud employee.

	c.  An undated character reference letter wherein the author describes the applicant as an exceptional employee who gets things done.

	d.  A character reference letter, dated 26 January 2010, from a county sheriff who describes the applicant as a hard worker who is trying to improve his life and that his desire to improve his worth and integrity outweigh the odds against him.

10.  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, an under other than honorable conditions discharge is normally considered appropriate.

11.  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.

12.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to an honorable discharge and the evidence he submitted, including his prior active service and character reference letters, were carefully considered; however, they are not sufficiently mitigating to grant him the requested relief.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 8 August 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of a court-martial, with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of Army Regulation
635-200, chapter 10, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service during his last enlistment.  As such, there is no reason to upgrade his discharge.

4.  The available evidence shows a military career marred with misconduct that included one instance of a court-martial, four instances of NJP, and an instance of AWOL.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general or an honorable discharge.  Therefore, he is not entitled to 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)                                         AR20100009384



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)