IN THE CASE OF:	  

		BOARD DATE:	  9 February 2012

		DOCKET NUMBER:  AR20110014960 


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.  He states he was young and did not do what he was told to do.  The Army was justified in giving him an under other than honorable conditions discharge; however, subsequent to his discharge, he has not been in any type of trouble.  In fact, he got married, raised children, and now he has grandchildren.

3.  The applicant provides two character reference letters. 

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 25 June 1981 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.  His record shows he attained the grade of rank of specialist four/E-4; however, it does not indicate he received any significant awards or special recognitions. 

4.  A DD Form 458 (Charge Sheet) shows that while assigned to Service Battery, 1st Battalion, 77th Field Artillery, the applicant was charged with the following offenses:

* Three specifications of being absent without leave (AWOL) on three separate occasions between the period 16 January and 28 February 1984
* Three specifications of failing to report to his appointed place of duty at the prescribed time
* Four specifications of disobeying a lawful order from his superior noncommissioned officer

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

6.  On 21 June 1984, he 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 2 years, 9 months, and 6 days of active service.  His service was characterized as under other than honorable conditions.  He had 
83 days of time lost due to AWOL. 

7.  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.

8.  He provided two character reference letters which note the applicant’s integrity as being above reproach.  He was also stated to be a person who has the desire to do what’s right.  He has become a successful business person and a positive role model in his community.

9.  Army Regulation 635-200, 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.  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.

	c.  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.  

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 were 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 was charged with 10 specifications of violating the Uniform Code of Military Justice which included periods of AWOL, failure to go to his prescribed place of duty at the specified time, and disobeying lawful orders.  As a result, his 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)                                         AR20110014960





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ABCMR Record of Proceedings (cont)                                         AR20110014960



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