IN THE CASE OF:	  

		BOARD DATE:	  23 August 2011

		DOCKET NUMBER:  AR20110002857 


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 honorable.

2.  He states he previously received an honorable discharge on 23 September 1978.  He explains that he had just completed a permanent change of station to Fort Bliss, TX from a long tour in Germany.  He maintains he was only at Fort Bliss for a few months when he was sent to Fort Hunter Liggett, CA for 6 months. He adds that this caused him to leave his wife alone; which led to their divorce.

3.  He provides the following:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* DD Form 214 (Report of Separation from Active Duty)
* Certificate of Achievement, dated 12 March 1986
* Certificate of Commendation, dated 28 May 1987
* Certificate of Graduation, dated 14 March 1986
* DA Form 1059 (Service School Academic Evaluation Report), dated
3 March 1978
* Stock Control and Accounting Specialist Course Diploma, dated 15 April 1976





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 in the Regular Army on 1 December 1975.  He served 2 years, 9 months, and 21 days and was honorably released on 21 September 1978 for immediate reenlistment the following day.  He served in Germany from 17 May 1976 to 9 January 1979.

3.  During the applicant's military service, he successfully graduated from the Stock Control and Accounting Specialist Course on 15 April 1976 and completed the Primary Leadership Course from 6 February 1978 to 3 March 1978. 

4.  He provided a certificate of achievement that shows he successfully completed the Side Handle Baton Basic Course.  His certificate of commendation shows he was commended for his outstanding performance of duty to the Department of Corrections.  Additionally, his certificate of graduation shows he successfully completed the 80-Hour Tactical Support Unit Academy.

5.  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.

6.  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 
5 November 1979, 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 3 days of net active service this period with 68 days listed as 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 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 the available records, the presumption of regularity must be applied.  The applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  He has failed to submit evidence that would satisfy that requirement.

2.  His record of service included 68 days of time lost because of AWOL, DFR, and confinement.  His discharge under chapter 10, Army Regulation 635-200 also indicates that he voluntarily requested discharge in lieu of a court-martial, although the specific offense(s) are unknown.  Based on this record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct renders his service as unsatisfactory.

3.  Based on the foregoing, 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)                                         AR20110002857





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ABCMR Record of Proceedings (cont)                                         AR20110002857



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