IN THE CASE OF:	  

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100030378 


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 under other than honorable conditions discharge be upgraded to a general under honorable conditions discharge.

2.  He states he was told his discharge would be changed to an honorable discharge within six months of his separation for hardship.  He offers that he does not know why the upgrade has not occurred since he was allowed to serve six months in the Army National Guard upon his release from active duty.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a self-authored statement.

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 record shows he enlisted into the U.S. Army Reserve (USAR) on 18 January 1979 and entered active duty for training on 28 January 1979.  He served 3 months and 7 days on active duty and was honorably released on
4 May 1979 and transferred to his Reserve unit.  

3.  He was discharged from the USAR for the purpose of enlisting in the Regular Army, on 19 June 1979. 

4.  The charge sheet or the facts and circumstances pertaining to his discharge proceedings in lieu of a trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), are not contained in his available military records.

5.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged for the good of the service in lieu of a trial by court-martial on 
26 January 1981, under the provisions of Army Regulation 635-200, chapter 10.  It shows his service was characterized as under other than honorable conditions. It further shows he completed 11 months and 14 days of total active service with 233 days listed as lost time.

6.  His record is void of any documentation to show he applied for and/or received a hardship discharge.

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

8.  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 a 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 a copy of the applicant's chapter 10 discharge packet is not in his available records, the evidence of record shows that he was discharged in lieu of trial by court-martial.  There is no evidence and he has not provided any to show that he received a hardship discharge.  Therefore, in the absence of documentation to support his claim, the presumption of regularity must be applied.  

2.  The applicant's record of service included 233 days of lost time.  His discharge under the provisions of chapter 10, Army Regulation 635-200, indicates that he voluntarily requested discharge in lieu of a trial by court-martial, although the specific offense(s) is/are unknown.  Based on this record of indiscipline (i.e., 233 days of lost time), the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.  Therefore, there is no basis for granting the applicant's 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)                                         AR20100030378





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ABCMR Record of Proceedings (cont)                                         AR20100030378



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