IN THE CASE OF:	  

		BOARD DATE:	  12 October 2010

		DOCKET NUMBER:  AR20100010999 


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 undesirable discharge be upgraded to an honorable discharge.

2.  The applicant insinuates, in effect, that the treatment he received while in the military was responsible for his actions.  He states he joined the Army for 4 years and a $1,500.00 bonus, but he did not receive the bonus.  He also maintains that he was supposed to be assigned to the 101st Airborne Division, but he was placed in the infantry instead.  

3.  The applicant provides a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).  

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 record shows he enlisted in the Regular Army on 24 July 1972 for 4 years.

3.  Part VI (Statement for Enlistment) of the applicant's enlistment contract shows that upon the applicant being awarded the military occupational specialty (MOS) of either 11B, 11C, 11D, 11E, 13A or 13E he would be paid an enlistment bonus of $1,500.  He signed the contract acknowledging if he voluntarily or because of misconduct failed to satisfactorily complete Advanced Individual Training (AIT) he would be trained in another MOS based upon the needs of the Army, unless released from active duty for administrative or disciplinary reasons. In that event, the applicant would not receive an enlistment bonus.

4.  His enlistment contract further shows he would be assigned to the 101st Airborne Division, Fort Campbell Kentucky.  However, this option was based upon him successfully completing all prerequisites, including AIT.

5.  There is no evidence in the applicant's records to show he completed AIT and was awarded an MOS.  

6.  On 6 November 1972, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL) on two separate occasions, from 17 September to 26 September 1972 and from 30 September to 16 October 1972.  His punishment consisted of a forfeiture of $144.00 for 2 months, and extra duty and restriction for 30 days.

7.  On 7 February 1973, NJP was imposed against the applicant for being AWOL from 27 November 1972 to 10 January 1973.  His punishment consisted of a forfeiture of $153.00 pay.

8.  The charge sheet or the facts and circumstances pertaining to the applicant’s discharge proceedings under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, by reason of in lieu of trial by court-martial are not contained in his available military records.

9.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200, chapter 10 on
1 October 1973.  It shows his discharge was characterized as under conditions other than honorable and he was issued a DD Form 258A (Undesirable Discharge Certificate).  It further shows he completed 6 months and 3 days of total active service with 248 days lost under Title 10 USC 972.  Item 23a (Specialty Number and Title) lists his MOS as 09C (Basic Trainee).  
10.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

11.  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 undesirable discharge was normally considered appropriate at the time.

12.  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.

13.  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.  Evidence of record shows the applicant's bonus and unit assignment to the 101st Airborne Division was contingent on him successfully completing AIT and being awarded an MOS, which did not occur.  Therefore, his claim that the treatment he received led to his indiscipline is not sufficient as a basis for upgrading his discharge.  

2.  Although the applicant's chapter 10 discharge packet is not in the available records, the presumption of regularity must be applied.  The applicant failed to show through the evidence that the record is in error or unjust.  

3.  The applicant's record of service included 248 days of time lost due to being AWOL.  The applicant's discharge under chapter 10, Army Regulation 635-200 also indicates he voluntarily requested discharge in lieu of a court-martial, although the specific offense(s) are unknown.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service unsatisfactory.  Therefore, 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)                                         AR20100010999



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ABCMR Record of Proceedings (cont)                                         AR20100010999



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