BOARD DATE:	  10 February 2012

		DOCKET NUMBER:  AR20110014852 


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.  He requests a personal appearance before the Board.

2.  The applicant states after completion of basic training he was informed by the first sergeant and sergeant major that he was granted a 30-day leave to go home and get his affairs in order.  He did not know what this was about until he arrived in Arkansas and learned a female Soldier whom he met at basic training had called the base commander and told him she was pregnant and about to lose the baby if he didn't come home as soon as possible.  Once there he learned she had lied and then she told him she would kill herself if he went back to Fort Dix.  He stayed there, married this woman in 1991, and they had a baby that died after 7 days.  He eventually turned himself in to authorities.

3.  The applicant 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.  He enlisted in the Army National Guard on 23 March 1990 in the rank of private first class.  He was ordered to active duty for training effective 30 September 1990.  He did not complete training and was not awarded a military occupational specialty.  The highest rank he held was private first class.

3.  The applicant's discharge packet is not contained in his records.  However, his record contains a DD Form 214 that shows on 31 March 1992 he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was given an under other than honorable conditions discharge.  His DD Form 214 shows he completed 5 months and 18 days of active service during this period.  The form further shows he had lost time during the period 24 December 1990 through 6 January 1992.

4.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

5.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would insure a Soldier would not be coerced into submitting a request for discharge for the good of the Service.  The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge was accepted, the Soldier could be discharged under conditions other than honorable.  They would also acknowledge that they had been advised and understood the possible effects of a discharge under other than honorable conditions; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Department of Veterans Affairs; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge they understood they may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

6.  Army Regulation 635-200, paragraph 3-7a, stated an honorable discharge was a separation with honor and entitled 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 be clearly inappropriate.

7.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was 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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records) provides Department of the Army policy, criteria, and administrative instructions regarding an applicant's request for the correction of a military record.  It states 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.  Applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was discharged under the provisions of Army Regulation      635-200, chapter 10.  In order to be discharged under chapter 10, the applicant would have voluntarily requested discharge in lieu of a trial by court-martial.

2.  The applicant provided a self-authored statement detailing the circumstances that led to his going absent without leave.  While his statement is believable, there is no evidence that he spoke with his commander or first sergeant about this.  The Army has policies and procedures to deal with hardships.

3.  While the Board does not have his discharge packet, the Board starts its consideration with a presumption of regularity, that what the Army did was correct.  The burden of proving otherwise is the responsibility of the applicant.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

4.  His request for a personal appearance hearing was carefully considered.  However, by regulation, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and independent evidence provided by the applicant is sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case.

5.  In view of the foregoing, there is no basis to upgrade his 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 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)                                         AR20110014852



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ABCMR Record of Proceedings (cont)                                         AR20110014852



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