IN THE CASE OF:
BOARD DATE: 24 May 2011
DOCKET NUMBER: AR20100027007
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 his character of service be changed to honorable on his DD Form 214 (Certificate of Release or Discharge from Active Duty).
2. The applicant states:
* in October 1981, he filed to upgrade his discharge from under other than honorable conditions to honorable
* 6 months later he received a letter changing his discharge to honorable
* he was unaware he needed to send this letter to "military records" in order to correct his DD Form 214
* the letter was destroyed in a house fire
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. He enlisted in the Regular Army on 18 September 1979 for a period of
3 years. He completed his training and was awarded military occupational specialty 64C (motor transport operator).
3. The facts and circumstances surrounding the applicant's discharge are not contained in the available records. However, his DD Form 214 shows he was discharged under other than honorable conditions on 16 March 1981 under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. He completed a total of 1 year, 5 months, and 29 days of creditable active service.
4. Item 24 (Character of Service) of his DD Form 214 shows the entry "UNDER OTHER THAN HONORABLE CONDITIONS."
5. Records show he applied to the Army Discharge Review Board for a discharge upgrade on 11 March 1993; however, his case was closed on 12 September 1994 without any action by the board.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 provides 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.
7. 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.
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. Although he contends his discharge was changed to honorable, there is no evidence and he provided no evidence to support this contention.
2. In the absence of evidence to the contrary, it must be presumed his separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, 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 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) AR20100027007
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ABCMR Record of Proceedings (cont) AR20100027007
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