IN THE CASE OF:	  

		BOARD DATE:	  21 June 2011

		DOCKET NUMBER:  AR20100028080 


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.

2.  The applicant states he had psychiatric and marital problems that impaired his ability to finish his contractual enlistment period.  He states that a third-party report shows that his intention for being absent without leave (AWOL) was to "avoid overseas movement and obtain discharge from service by any means available."  He states he was a "damn good Soldier" who made corporal in less than 12 months and he was up for sergeant in 15 months.

3.  The applicant does not provide any supporting documents with his application.  

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 27 November 1974 for a period of 4 years.  He completed his initial entry training and he was awarded military occupational specialty 11B (Infantryman).  The highest rank/grade he attained was corporal (CPL)/E-4.

3.  The applicant accepted nonjudicial punishment under the provisions of
Article 15, Uniform Code of Military Justice (UCMJ) on 24 February 1975 for stealing a box of candy from the Army-Air Force Exchange Service Post Exchange.

4.  The charge sheet or the specific facts and circumstances pertaining to the applicant's discharge proceedings 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 are not contained in his available military record.  However, his record does contain a DA Form 3836 (Notice of Return of U.S. Army Member from Unauthorized Absence) that shows he was reported AWOL on 1 November 1976 (corrected to 5 October 1976) and he was dropped from the rolls of his organization on 5 November 1976.  He was subsequently apprehended by civilian authorities and returned to military control on 21 December 1976.

5.  On 14 February 1977, he underwent a mental status evaluation that concluded he had no significant mental illness, that he was mentally responsible, that he could distinguish right from wrong, that he was able to adhere to the right and that he had the mental capacity to understand and participate in board proceedings.  He met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.  He also indicated in item 8 (Statement of Examinees Present Health and Medications Currently Used) of his chapter 10 separation medical examination of his Standard Form 93 (Report of Medical History) the entry, "I am in good health."

6.  His record contains a duly-constituted DD Form 214 that shows he was discharged on 4 April 1977 under the provisions of Army Regulation 635-200, chapter 10, with special program designator (SPD) JFS, which refers to a discharge for the good of the service - in lieu of trial by court-martial.  His DD Form 214 further shows he was issued an Under Other Than Honorable Conditions Discharge Certificate.  He completed 2 years, 1 month, and 18 days of total active service with 80 days of time lost from 5 October through
31 October 1976 and from 5 November through 27 December 1976.

7.  There is no evidence to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  The maximum punishment for AWOL is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to grade E-1, and a total forfeiture of all pay and allowances.

	b.  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 was normally considered appropriate at the time.

	c.  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.

	d.  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.

	e.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The ABCMR begins its consideration of each case with the presumption of administrative regularity deciding cases on the evidence of record.  It is not an investigative body.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.  


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's chapter 10 discharge packet is not in the available for review, the presumption of administrative regularity must be applied.  The applicant failed to show that his record is in error or unjust.  He stated he had psychiatric problems, but this is not support by his own personal health statement or the mental status evaluation contained in his record.

2.  The applicant's record of service included 80 days of time lost.  His discharge under the provisions of Army Regulation 635-200, chapter 10, indicates he voluntarily requested discharge in lieu of trial by court-martial, although the specific offense(s) are unknown.  Based on his record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His misconduct rendered his service unsatisfactory.  Therefore, there is no basis for granting the requested 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)                                         AR20100028080



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ABCMR Record of Proceedings (cont)                                         AR20100028080



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