BOARD DATE:	  20 January 2011

		DOCKET NUMBER:  AR20100018238 


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, in effect, that his discharge under other than honorable conditions be upgraded.

2.  The applicant states his type of separation was unjust.  His problems started after five or six individuals jumped him causing him bodily injury.  He requests that Fort Meade Military Police records be reviewed to verify the incident.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty) with a separation date of 25 January 1977 and an excerpt from his military medical records.

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 on 11 February 1975.  He completed his initial entry training and was awarded military occupational specialty 94B (Food Service Specialist).

3.  The applicant's personnel service records show a disciplinary history that includes acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice on two separate occasions for failing to obey a lawful regulation, disobeying the lawful order of a superior commissioned officer, and possession of a controlled substance – marijuana.

4.  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, in lieu of trial by court-martial are not contained in his available military records.  However, a DA Form 268 (Report for Suspension of Favorable Personnel Actions) contained in his record shows he was pending charges for possessing and selling a controlled substance and larceny.

5.  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 25 January 1977.  It shows his discharge was characterized as under conditions other than honorable and he was issued a DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate).  It further shows he completed 1 year, 11 months, and 6 days of total active service with 9 days of lost time.

6.  There is no evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  The undated medical record he provided shows he was treated at Walter Reed Army Medical Center for a concussion after five or six people kicked his head and body.

8.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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, a discharge under other than honorable conditions was normally considered appropriate at the time.
	b.  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.

	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.

	d.  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 ABCMR begins its consideration of each case with the presumption of administrative regularity deciding cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  The Board may deny applications when the evidence and do not adequately support the alleged error or injustice.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends the attack by five or six individuals led to the problems with his military service.  He requests that the ABCMR confirm the incident with the Fort Meade Military Police.

2.  The ABCMR is not an investigative body.  The applicant is responsible for providing sufficient evidence to the Board so it can review his application.  The applicant failed to provide sufficient evidence to support his contention that the attack ultimately led to his discharge.  To the contrary, he was discharged at his own request when he was charged with possessing and selling a controlled substance and larceny.

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

4.  The applicant's record of service included 9 days of lost time.  His discharge under the provisions of chapter 10, Army Regulation 635-200, indicates he voluntarily requested discharge in lieu of trial by court-martial, although the specific offense(s) are unknown.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for granting the 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 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)                                         AR20100018238



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100018238



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1