IN THE CASE OF:	  

		BOARD DATE:	  20 September 2011

		DOCKET NUMBER:  AR20110004460 


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 to upgrade his under other than honorable conditions (UOTHC) discharge to an honorable discharge. 

2.  He states he was never counseled concerning the consequences surrounding his discharge.  His chain of command did not take into consideration that the local authorities did not allow him to contact them.  

3.  He contends he was young, immature and very ignorant at the time of his offenses.  He was a country boy who had not completed high school and as a result, he was very wild and affected by the Army life style.  He got involved in a fight after having a couple drinks.  The local police did not allow him to contact his company commander so that he could report the incident and he was declared absent without leave (AWOL).

4.  He believes the type of discharge he received was unjust given the circumstances and he has been punished for more than 40 years.  He has been denied Department of Veterans Affairs (VA) benefits to include health care, obtaining a decent job and having a normal life.  

5.  In his old age, he would like to repent of his acts in order to receive an upgrade to his discharge, which would allow him to obtain the needed VA healthcare.  



6.  He provides:

* A certificate of no penal record 
* His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge)

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 military records are not available for review.  A fire destroyed approximately 18 million service members’ records at the National Personnel Records Center in 1973.  It is believed that the applicant's records were lost or destroyed in that fire.  However, there were sufficient documents remaining in a reconstructed record to conduct a fair and impartial review of this case.  

3.  His records show he was born on 7 April 1951 and enlisted in the Regular Army on 21 November 1969 at the age of 18 years, 7 months, and 15 days.  After completion of training, he served in military occupational specialty 12A (Pioneer).

4.  The facts and circumstances surrounding his separation action are not available for the Board's review. 

5.  His DD Form 214 shows he was discharged on 2 April 1973, in accordance with the provisions of Army Regulation 635-200 Personnel Separations - Enlisted Personnel), chapter 10 (For the Good of the Service).  The applicant's Separation Program Number (SPN) Code was "246" and character of service was "Under Conditions Other Than Honorable."  Item 26a (Non-Pay Periods Time Lost) of this document shows the applicant had time lost from 15 April 1970 to 5 February 1971 and from 5 March 1971 to 21 November 1972 for a total of 925 days.  This document also shows that at the time of his discharge he had completed 10 months and 4 days total active service.
6.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

7.  The applicant provided a Commonwealth of Puerto Rico (PR), Certificate of No Penal Record, dated 26 February 2010.  This certificate shows that at the time the search was conducted, the applicant did not appear to have any penal records filed with the Bureau of Penal Records in PR. 

8.  Army Regulation 635-200, in effect at the time of the applicant's separation from active duty, provided the authority for separation of enlisted Soldiers and the criteria governing the issuance of honorable, general, and UOTHC discharge certificates.  Chapter 10 of this regulation provided that a member who had committed an offense or offenses, for which the punishment for any included a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the Service.

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

10.  Army Regulation 635-5-1 (SPN Codes), in effect at the time of the applicant's discharge, provided the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPN codes to be entered on the DD Form 214.  This regulation identified the SPN code of "246" as the appropriate code to assign Soldiers separated under the provisions of Army Regulation 635-200, Chapter 10, for the good of the Service.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded to an honorable discharge because he was young and immature at the time of his enlistment.  He also feels because he has repented of his acts and due to the lapse of time, he should be entitled to VA benefits.  

2.  The evidence of record confirms that the applicant submitted a voluntary request for discharge for the good of the service.  At the time of his request he was nearly 22 years of age and there is no evidence to show he was any less mature than other Soldiers his age that successfully completed their military service obligations. 

3.  The applicant's separation packet was not available for the Board's review. There is a presumption of administrative regularity in the conduct of governmental affairs.  This presumption can be applied to any review unless there is substantial creditable evidence to rebut the presumption.  In this instance, the "presumption of regularity" is based on Army Regulation 15-185 which states the ABCMR begins its consideration of each case with the presumption of administrative regularity and that the applicant has the burden of proving an error or injustice by a preponderance of the evidence.

4.  The applicant has not provided sufficient evidence or a convincing argument to show he was unjustly discharged.  Therefore, in the absence of evidence to the contrary, it reasonable to presume that the applicant was properly and equitably discharged in accordance with the regulations in effect at that time, that all requirements of law and regulations were met, and his rights were fully protected throughout the separation process.

5.  At the time of his voluntary discharge, he had completed 10 months and 
4 days active service and had 925 days of time lost due to AWOL.  Moreover, the evidence of record clearly shows that the applicant's overall quality of service was not satisfactory.  

6.  The fact that he has endured the burden of UOTHC discharge throughout his post-service life is not a basis for upgrading his discharge.  In addition, the ABCMR does not grant a request for upgrade of a discharge solely for the purpose of making the applicant eligible for government benefits.

7.  In view of the foregoing, he is not entitled to 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)                                         AR20110004460





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ABCMR Record of Proceedings (cont)                                         AR20110004460



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