IN THE CASE OF:	  

		BOARD DATE:	    11 January 2011

		DOCKET NUMBER:  AR20100016222 


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 upgrade of his undesirable discharge under other than honorable conditions to an honorable discharge.

2.  He states, in effect, he thinks it was unjust for someone to tell him to perform Fire Guard duty while he was on medication and could not function properly.  He further states it was wrong for someone to tell him to perform guard duty while he was intoxicated.

3.  He provides no additional documentation in support of this 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.  His record shows he enlisted in the Regular Army on 30 May 1974.  Upon completion of basic combat and advanced individual training he was awarded military occupational specialty (MOS) 13B (Field Artillery Basic).

3.  On 8 August 1974, he accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) Article 86 of the UCMJ by absenting himself from his unit from 8 July 1974 to 5 August 1974.

4.  On 27 March 1975, a suspension for favorable actions was placed upon him due to the fact he was pending Special Court-Martial for violation of articles 90 and 134 of the UCMJ.

5.  Special Orders Number 113 rendered by Headquarters, U.S. Army, Europe and Seventh Army on 23 April 1975 reduced the applicant in rank/pay from private/E-2 to private/E-1 effective 3 April 1975 as the result of him receiving an Undesirable Discharge.  These same orders reassigned him to the U.S. Army Transfer Station, Fort Dix, NJ for separation processing with a reporting date of 27 April 1975 and directed he be issued a DD Form 258A (Undesirable Discharge Certificate.

6.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  The DD Form 214 issued to the applicant at the time shows he was separated under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, with an under other than honorable conditions characterization of service and the issuance of a DD Form 258A.  At the time of his separation he had completed 10 months and 10 days of creditable active military service and he was credited with 28 days of lost time.

7.  There is no evidence in the available record that indicates the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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, type of discharge normally given under the provisions of this chapter, the loss of veteran's benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Under Other than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

9.  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.

10.  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 record should be corrected by upgrading his undesirable discharge under other than honorable conditions to an honorable discharge was carefully considered and determined to lack merit.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, require an admission of guilt to the offense(s) charged and the requests are voluntary requests for discharge in lieu of trial by court-martial.  As such, government regularity insofar as the discharge process must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.  Therefore, the applicant is not entitled to either a general or an honorable 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)                                         AR20100016222





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ABCMR Record of Proceedings (cont)                                         AR20100016222



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