BOARD DATE:	  7 April 2011

		DOCKET NUMBER:  AR20100024662


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 to a general discharge.

2.  The applicant states his discharge was unjust.

3.  The applicant 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 Regular Army on 8 November 1976 for a period of 4 years.  He completed training and he was awarded military occupational 

specialty (MOS) 11D (Armor Reconnaissance Specialist).  On 17 September 1978, he was reclassified and awarded MOS 19F (Tank Driver) as his primary MOS and MOS 19D (Cavalry Scout) as his secondary MOS.  

3.  His records show he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions for the offenses indicated:

	a.  on 19 January 1977 for wrongfully possessing marijuana on 13 January 1977; 

	b.  on 9 May 1977 for being drunk and disorderly in command, for disobeying the direct order of a superior noncommissioned officer, and for communicating a threat on 30 April 1977;

	c.  on 2 December 1977 for disobeying the direct order of a superior commissioned officer and for failing to be at the time prescribed at his appointed place of duty on 22 November 1977;

	d.  on 23 January 1978 for being drunk in command on 15 January 1978; and

	e.  on 14 July 1980 for disobeying a lawful order by chambering a round in his shotgun on 7 June 1980.

4.  On 21 November 1980 he was reported absent without leave (AWOL) by his unit and he remained AWOL until 24 November 1980.

5.  His discharge packet is not available for review.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was administratively discharged on 3 February 1981 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for conduct triable by court-martial, and issued an under other than honorable conditions discharge.  His DD Form 214 also shows he completed 4 years,
2 months, and 23 days of creditable active service with 3 days of time lost due to being AWOL.

6.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

7.  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.

8.  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 request for an upgrade of his under other than honorable conditions discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  His records indicate he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.

3.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The characterization of service is commensurate with the applicant’s overall record of military service.

4.  His contention that his discharge was unjust has been noted; however, there is no evidence in the available records, or any evidence provided by the applicant, that supports this contention.

5.  Based on his record of indiscipline, including multiple instances of NJP, his service clearly does not meet the standards of acceptable conduct and 

performance of duty for Army personnel.  His misconduct also rendered his service unsatisfactory; therefore, he is not entitled to a general discharge.

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)                                         AR20090019040



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ABCMR Record of Proceedings (cont)                                         AR20100024662



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