BOARD DATE:	  15 December 2011

		DOCKET NUMBER:  AR20110012107 


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 discharge under other than honorable conditions be upgraded to an honorable discharge.

2.  The applicant states he had only one issue during his time in the Army due to a lack of personal judgment in a relationship.  He continues to serve but in a different role as a firefighter for the past 27 years with a spotless record.  

3.  The applicant provides no additional evidence in support of 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.  He enlisted in the Regular Army on 23 April 1981 for a period of 3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 11B (Infantryman).  He was assigned to the 1st Battalion, 32nd Infantry at Fort Ord, CA on 10 March 1983.

3.  On 4 November 1983, he received a letter of reprimand from his company commander for cashing an Army paycheck after he had claimed non-receipt of the check and receiving subsequent payment for the check.

4.  On 26 January 1984, he was discharged and immediately reenlisted on 
27 January 1984 for a period of 5 years.  His service from 23 April 1981 to 
26 January 1984 was characterized as honorable.  

5.  He departed on a period of being absent without leave on 1 August 1984 and he surrendered to military authorities on 4 September 1984.

6.  On 9 October 1984, the applicant was discharged under the provisions of 
chapter 10, Army Regulation 635-200 (Personnel Separations) for the good of the service.  He completed a total of 3 years, 4 months, and 13 days of active service.  His service from 27 January 1984 to 9 October 1984 was characterized as under other than honorable conditions.  He had 33 days time lost during his second enlistment.

7.  His separation processing package was not available for review.

8.  There is no record he applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

9.  Army Regulation 635-200 (Personnel Separations), then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  

	a.  Chapter 10 stated that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

	b.  Paragraph 16-3 stated when a Soldier is accepted for immediate reenlistment he will be discharged and reenlisted on the day following discharge. The service of a Soldier discharged per paragraph 16-3 will be characterized as honorable unless entry-level separation is required.
	c.  An honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would have been  clearly inappropriate.

	d.  A general discharge is a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions would have been  issued only when the reason for the Soldier’s separation specifically allowed such characterization.

10.  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.  Although his separation package was not available for review by this Board, in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  He would have been required to consult with defense counsel and to have voluntarily and in writing requested separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offenses he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

2.  He received an honorable discharge for his first period of service.  During his second period of service he had 33 days time lost.  Therefore, his second period of service is determined to be unsatisfactory.

3.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and his rights were fully protected throughout the separation process and that the type of discharge and the reason for separation were appropriate.

4.  His post-service achievements and conduct are noted.  However, good post- service conduct alone is not normally sufficient for upgrading a properly issued discharge.

5.  In view of the above, there is an insufficient basis to change the character of his service to honorable or under honorable conditions.

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)                                         AR20110012107



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ABCMR Record of Proceedings (cont)                                         AR20110012107



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