BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100019196 


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 discharge to an honorable discharge.

2.  He states:

* Based upon immaturity and illogical thinking and decisions he allowed personal and family matters to interfere with his decision at the time, which resulted in divorce
* He was a good Soldier that made a bad decision during his second reenlistment
* He paid the punishment for his debt
* Prior to this incident, it was his intent to become a career Veteran and honorably serve his county
* He apologizes for the shame he brought upon the military and the United States of America

3.  He provides:

* His DD Form 214 (Certificate of Release or Discharge From Active Duty)
* His DD Form 215 (Correction to DD Form 214)


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 was born on 4 July 1960 and enlisted in the Regular Army on 28 August 1979 at the age of 19 years, 1 month, and 24 days.

3.  The applicant's record documents no acts of valor or service warranting special recognition.

4.  He received non-judicial punishment under Article 15, Uniform Code of Military Justice for being absent without leave (AWOL) from 3 August to 28 August 1982.

5.  His record contains a DD Form 458 (Charge Sheet) that shows on 28 April 1986 he went AWOL.

6.  His record contains a DD Form 4187 (Personnel Action) which shows he surrendered to military authorities on 25 June 1986.

7.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for his discharge.  The DD Form 214 shows he was discharged on 30 July 1986 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial, with issuance of an under other than honorable discharge.  The DD Form 214 he was issued confirms he completed a total of 6 years, 9 months, and 6 days of active service.  

8.  On 24 February 1988, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

9.  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, a discharge under other than honorable conditions is normally considered appropriate.

10.  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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant's service.

2.  His service record shows he received an Article 15.  The evidence of record shows a total of 83 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His record shows he was 19 years of age at the time of his enlistment and he was 25 years of age at the time of his offenses.  However, there is no evidence that indicates his family matters or divorce contributed to his acts of misbehavior or misconduct.  In fact, he was given his first nonjudicial punishment for being AWOL four years prior to his discharge.

4.  There is no evidence that shows he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

5.  In view of the above, there is no basis for granting him 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)                                         AR20100019196



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1