BOARD DATE:	  31 January 2012

		DOCKET NUMBER:  AR20110013716 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he completed boot camp and AIT (advanced individual training).  When he went on leave prior to his first duty station he was very young and immature and made the wrong decision and did not return when his leave was up.  He turned himself in and was administratively discharged.  He is now homeless and feels if his discharge was upgraded he would be able to be a more productive citizen.

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, at age 22, in the Regular Army on 6 May 1980 for a period of 
3 years.  He completed basic combat and advanced individual training and was awarded military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  On 10 December 1980,  he was given a mental status evaluation.  The examiner found that the applicant met the physical retention standards prescribed in Army Regulation 40-501 (Standards of Medical Fitness).  The examiner further determined that the applicant was mentally responsible, able to distinguish right from wrong, able to adhere to the right, and had the mental capacity to understand and participate in proceedings.

4.  A DA Form 4187 (Personnel Action), dated 15 December 1980, shows he was absent without leave from 22 September to 30 November 1980.  

5.  The facts and circumstances pertaining to the applicant’s discharge are not on file.

6.    On 30 April 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, due to conduct triable by court martial.  He had completed 9 months and 16 days of active service that was characterized as under other than honorable conditions.  He had 69 days of time lost.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 of that regulation provides, in pertinent part, 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 is normally considered appropriate.

	b.  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.

	c.  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.  

8.  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 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’s age at time of enlistment was noted.  However, many Soldiers were enlisted at a younger age and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant should not be used as a reason to change a properly-issued discharge.

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

3.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate.

4.  His period of AWOL does not show acceptable conduct and performance of duty.  He failed to report to his first assignment after graduating from AIT.  He did not  complete the period of service for which he contracted for.  His service is determined to be unsatisfactory.  Therefore, there is insufficient substantive evidence to upgrade the applicant's under other than honorable conditions discharge to an honorable or general discharge.



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)                                         AR20110013716





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ABCMR Record of Proceedings (cont)                                         AR20110013716



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