IN THE CASE OF:	  

		BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100010907 


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 that his under other than honorable conditions discharge be upgraded to general, under honorable conditions.

2.  The applicant states he was told to file a request for an upgrade of his discharge after 6 months and it would automatically be approved.

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty), page 2 of his DA Form 2-1 (Personnel Qualification Record - Part II), and a letter from the State of California, Department of Corrections and Rehabilitation.

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.  On 30 May 1979, the applicant enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 63B (Power Generator and Wheel Vehicle Mechanic).  He was subsequently assigned to Fort Ord, California.

3.  The applicant accepted the following nonjudicial punishments:

	a.  1 November 1979: absent without leave (AWOL) 2 to 15 October 1979; and

	b.  7 December 1979: AWOL 22 to 28 November 1979.

4.  On 8 April 1980, charges were preferred against the applicant for being AWOL from on or about 27 December 1979 to on or about 3 March 1980.

5.  On 9 April 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial, under the provisions of Army Regulation 635-200, chapter 10.

6.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

7.  On 24 April 1980, the separation authority approved the applicant’s request for discharge and directed that he be issued a discharge under other than honorable conditions.  Accordingly, on 15 May 1980, the applicant was discharged.  He had completed a total of 8 months and 22 days of creditable active duty service.

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

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

10.  Under the Uniform Code of Military Justice, the maximum punishment allowed for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

11.  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.

12.  The applicant provided a letter from the Correctional Officer, Central Facility, Department of Corrections and Rehabilitation, State of California.  The officer stated that the applicant, an inmate, had been actively participating in group meetings and activities as a member of the Veterans Group of Correctional Training Facility (VGCTF) since 30 April 2009.  The VGCTF is a multipurpose self-help leisure time activity group for veterans at the correctional training facility.  The goal of the group is to aid veterans by providing support for in-service related problems, including but not limited to post traumatic stress disorder, alcohol/drug abuse, family relations, life skills, and other concerns believed to be related to duty in the military.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be automatically upgraded to general, under honorable conditions.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.
4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100010907





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ABCMR Record of Proceedings (cont)                                         AR20100010907



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