BOARD DATE:	  17 March 2011

		DOCKET NUMBER:  AR20100023918 


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

2.  He states:

* It has been over 20 years since he was discharged
* He was very young and it was a very stressful time for him
* He is currently unemployed
* He needs his discharge upgraded so he can attend truck driving school
* He just had a baby and times are very hard for him

3.  He provides no additional documents.

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 15 December 1956 and he enlisted in the Regular Army on 22 February 1977 at age of 20.  He held military occupational specialty 76P (Stock Control Specialist).

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

4.  He received nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ) for the following offenses:

     a.  on 9 June 1977 and 17 March 1978, for failure to be at his appointed place of duty at the time prescribed.

     b.  on 25 April 1978, for wrongfully appearing at the morning inspection without his nametag, failure to sew his name on his field jacket, and using disrespectful language towards a noncommissioned officer.

5.  His record contains a DD Form 3836 (Notice of Return of U.S. Army Member from Authorized Absence) which shows he departed his unit in an absent without leave (AWOL) status on 15 July 1978 and he remained AWOL until he surrendered to military authorities on 17 August 1978.

6.  His record contains a DD Form 458 (Charge Sheet) that shows charges were preferred against him for the above period of AWOL.  However, there are no further facts and circumstances surrounding his discharge processing available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for discharge.  The DD Form 214 shows he was discharged on 20 September 1978 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 an under other than honorable conditions discharge.  The DD Form 214 he was issued confirms he completed a total of 1 year, 5 months, and 29 days of active service he had      32 days of lost time.  

7.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge.



8.  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.

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.  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.  The available evidence shows he received three Article 15s and he had 32 days of lost time due to being AWOL.  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.  He was 20 years of age at the time of enlistment and there is no evidence that he was any less mature than other individuals of the same age who completed their military obligations.  



4.  There is no evidence that shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time.  It appears that all requirements of law and regulations were met.  Absent evidence to the contrary 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)                                         AR20100023918



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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