IN THE CASE OF:	  

		BOARD DATE:	    4 November 2010

		DOCKET NUMBER:  AR20100012483 


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 discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states his DD Form 214 (Certificate of Release or Discharge from Active Duty) states he received a less than honorable discharge, but the [Department of Veterans Affairs] told him he received a dishonorable discharge.  He has turned his life around and feels he deserves a second chance.

3.  The applicant provides a copy of his DD Form 214 with a separation date of 16 January 1992.

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 military personnel records show he enlisted in the Regular Army on 26 January 1990 for a period of 4 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  On 26 July 1990, the applicant was assigned to Headquarters and Headquarters Company, 3rd Battalion, 504th Parachute Infantry Regiment, at Fort Bragg, NC.

4.  The applicant's DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) from:

* 16 July 1991 to 31 July 1991
* 13 August 1991 to 31 October 1991

5.  Having been advised by his defense counsel, the applicant signed a statement that he knowingly, willingly, and voluntarily declared that he was AWOL from 13 August 1991 to 1 November 1991.  The applicant also stated that he was making this admission for administrative purposes so that he could process out of the Army and he realized that in doing so he may be given an under other than honorable conditions discharge.

6.  The applicant's separation processing package was not available for the Board's review.  The facts and circumstances pertaining to the applicant's discharge are not on file.

7.  On 16 January 1992, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.  He completed 1 year, 8 months, and 18 days of net active service that was characterized as under other than honorable conditions.  He had 96 days of lost time.

8.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 provided that a member who had 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 in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

9.  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.

10.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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 contends that his discharge under other than honorable conditions should be upgraded to a general discharge because he has turned his life around and he feels he deserves a second chance.

2.  The applicant contends that he was told he received a dishonorable discharge.  However, as shown on his DD Form 214, he received a discharge that is characterized as under other than honorable conditions.

3.  Although the applicant's separation package was not available for review by this Board, in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have been required to consult with defense counsel and to have voluntarily and in writing requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offenses he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

4.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate considering all the facts of the case.

5.  The applicant's multiple periods of AWOL do not show acceptable conduct and performance of duty.  His latest period of AWOL for 80 days shows his service was unsatisfactory.  Therefore, there is insufficient substantive evidence to upgrade the applicant's under other than honorable conditions discharge.

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)                                         AR20100012483



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ABCMR Record of Proceedings (cont)                                         AR20100012483



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