IN THE CASE OF:	  

		BOARD DATE:	  9 December 2010

		DOCKET NUMBER:  AR20100016367 


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 a general or honorable discharge.

2.  The applicant states he completed his first full term of enlistment honorably.  When he reenlisted, he was sent to Korea, which was the place that his troubles began.  He believes the discharge he was issued was unjust because he admitted he had a drug problem and the Army did not offer him any assistance with his problem. 

3.  The applicant provides two letters of support, a portion of his personnel file, his enlisted evaluations, DD Form 214 (Report of Separation from Active Duty), and decoration citations. 

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 enlisted in the Regular Army for a period of 4 years on               7 January 1975.  Upon completion of basic combat and advanced individual training, he was awarded military occupational specialty 13B (Cannoneer).  The highest rank/grade he attained was corporal/pay grade E-4.

3.  On 20 July 1978, the applicant was honorably discharged for immediate reenlistment on 21 July 1978 for 3 years. 

4.  On 21 April 1979, the applicant received nonjudical punishment under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from 20 December 1978 to 8 March 1979.  

5.  Records show the applicant went AWOL on 23 March 1979.  On                   23 April 1979, the applicant was dropped from the rolls.  On 18 July 1979, the applicant was returned to military control.

6.  The applicant’s separation packet is not available.  The applicant’s DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 with an under other than honorable conditions discharge on
27 September 1979 in the rank of private/pay grade E-1.  He had completed 
4 years, 8 months, and 21 days of active military service.  He also had 195 days of lost time from 20 December 1978 to 7 March 1979 and 23 March to 17 July 1979.

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

8.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 86 for being AWOL over 
30 days.

9.  Army Regulation 635-200 (Enlisted Separations) sets forth the basic authority for the separation of enlisted personnel:

	a.  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(s), the type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration 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.

	b.  Army Regulation 625-200, 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.

     c.  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.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contends his discharge was unjust because he admitted he had a drug problem and the Army did not offer him any assistance with his problem.  

2.  The specific facts and circumstance surrounding the applicant’s discharge processing are not available.  However, his records contain a properly constituted DD Form 214 which shows the applicant was discharged in accordance with Army Regulation 635-200.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative discharge was accomplished in accordance with applicable regulations, that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  The type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.



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)                                         AR20100016367



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ABCMR Record of Proceedings (cont)                                         AR20100016367



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