IN THE CASE OF:	  

		BOARD DATE:	  21 April 2011

		DOCKET NUMBER:  AR20100023694 


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 under other than honorable conditions discharge.

2.  He states that during his enlistment, he had a severe medical condition that went undetected.

3.  He provides no additional evidence.

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 U.S. Army Reserve (USAR) on 30 January 1976. He served on active duty for the purpose of initial active duty for training (IADT) 

from 16 May 1976 through 28 September 1976, a period of 4 months and 14 days.  Upon completion of IADT, he was released from active duty and he returned to control of the USAR to complete his remaining service obligation.

3.  On 2 August 1977, the commander of Headquarters and Headquarters Detachment, 157th Support Battalion, based in Edgmont, PA, submitted a request for active duty orders for the applicant under the provisions of Army Regulation 135-91 (Army National Guard and Army Reserve - Service Obligations, Methods of Fulfillment, Participation Requirements, and Enforcement procedures).  The commander stated the reason for this request was that the applicant had failed to fulfill the satisfactory participation requirements of that regulation by accruing 25 unexcused absences from unit training assemblies.  This request also indicates the unit commander and first sergeant visited the applicant's home and the applicant informed them he had no intention of satisfactorily fulfilling his Reserve obligation.  When asked why not, he had no answer.

4.  Headquarters, First U.S. Army, Fort George G. Meade, MD, Orders 185-15, dated 28 September 1977, show he was ordered to active duty for a period of 19 months and 16 days with a reporting date of 2 November 1977.  Additional instruction (i) of these orders informed him that if he failed to report for active duty as directed, he would become liable to disciplinary action under the Uniform Code for Military Justice (UCMJ).

5.  A DD Form 458 (Charge Sheet), dated 9 February 1978, shows he was charged with one specification of violating Article 86 of the UCMJ by absenting himself from his unit in an absent without leave (AWOL) status on 3 November 1977 and remaining so absent until 24 January 1978.

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, under separation program designator (SPD) code JFS (administrative discharge - conduct triable by court-martial), with an under other than honorable conditions discharge.  He completed 1 month and 17 days of active service during this period with 60 days of time lost.

7.  His record is void of any evidence and he has not provided any evidence that shows he suffered from any type of medical condition during his period of service.

8.  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.

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 3-7b, 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 under other than honorable conditions discharge was carefully considered and determined to lack merit.

2.  Although he contends his behavior was the result of a medical condition, his record is void of any evidence and he has not provided any evidence showing he suffered from any type of medical condition during his period of service.

3.  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.

4.  In view of the foregoing, there is no basis for granting the applicant's request.


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)                                         AR20100023694



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ABCMR Record of Proceedings (cont)                                         AR20100023694



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