BOARD DATE:	  13 April 2011

		DOCKET NUMBER:  AR20100024765 


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 conditions discharge to a fully honorable discharge. 

2.  The applicant states he paid his dues for the error he committed.  He had an alcohol problem at the time and the Army did nothing to help him. 

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty).

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's records show he enlisted in the Regular Army for a period of 2 years on 22 June 1974 and he held military occupational specialty 12B (Combat Engineer).  

3.  His records show he served in Germany from 24 October 1974 to 27 March 1976.  He was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  The highest rank/grade he attained during this period of service was private first class/E-3.

4.  His records reveal a history of acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), as follows:

   a.  On 2 April 1975, for disobeying a lawful order, being disrespectful towards a noncommissioned officer, and being disorderly.

   b.  On 20 February 1976, for disobeying a lawful order and being disorderly.

5.  On 28 February 1976, he departed his unit in Germany on 3 days of emergency leave; however, he did not return.  Accordingly, on 27 March 1976, he was reported in an absent without leave (AWOL) status.  He returned to military control in Wichita, KS, and was attached to Fort Riley, KS, on 25 April 1976.  However, he departed that station in an AWOL status on 26 April 1976.  He was dropped from Army rolls as a deserter on 22 May 1976.  He ultimately surrendered to military authorities on 5 April 1978 at Mather Air Force Base, CA.

6.  The complete facts and circumstances of his discharge action are not available for review with this case.  However, his records contain the following documents:

	a.  A DD Form 458 (Charge Sheet), dated 21 April 1977, that shows his chain of command preferred court-martial charges against him for two specifications of being AWOL from 27 March to 25 April 1976 and from 22 May 1976 to an unknown date.

	b.  Orders 115-214, issued by Headquarters, 7th Infantry Division, Fort Ord, CA, dated 25 April 1978, reassigning him to the U.S. Army Separation Transfer Point, effective 2 May 1978.

	c.  A properly-constituted DD Form 214 that shows he was discharged on 2 May 1978 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for the good of the service - in lieu of trial by a court-martial, with a character of service of under other than honorable conditions.  He completed a total of 1 year, 10 months, and 18 days of creditable active service and he had 738 days of lost time.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitation.

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, an under other than honorable conditions discharge 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.  The applicant's contention that his under other than honorable conditions discharge should be upgraded to an honorable discharge was carefully considered; however, there is insufficient evidence to support his request.

2.  The applicant’s record is void of the complete facts and circumstances that led to his discharge.  However, his record contains a properly-constituted 
DD Form 214 that shows he was discharged on 2 May 1978 under the provisions of chapter 10, Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial, with an under other than honorable conditions discharge.


3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required him to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process.  He has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service.  As such, there is no reason to upgrade his discharge.

4.  Contrary to his contention that he had an alcohol problem and the Army did nothing to help him, the available evidence shows a military career marred with misconduct that included two instances of NJP and 738 days of lost time.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant upgrading his discharge to either a general or an honorable 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)                                         AR20100024765



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ABCMR Record of Proceedings (cont)                                         AR20100024765



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