IN THE CASE OF:	  

		BOARD DATE:  28 February 2012

		DOCKET NUMBER:  AR20110016179 


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 that his discharge under other than honorable conditions be upgraded to a general discharge.

2.  The applicant states that he was an airborne ranger, young and immature, and he made mistakes; however, the majority of his active duty time was served honorably.

3.  The applicant provides a letter of assistance from a friend.

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 was born on 7 February 1959.  He enlisted in the Regular Army in Pittsburgh, Pennsylvania on 10 January 1978 at age 18, for a period of 
4 years, training as a chemical operations specialist, airborne training, and a cash enlistment bonus.  He was transferred to Fort Dix, New Jersey to undergo basic training. 

3.  On 22 February 1978, nonjudicial punishment (NJP) was imposed against him for assaulting another Soldier.

4.  He completed basic training at Fort Dix and was transferred to Aberdeen Proving Ground, Maryland to undergo advanced individual training (AIT). 

5.  On 18 May 1978, NJP was imposed against him for being absent without leave (AWOL) from 12 May to 15 May 1978.

6.  He completed AIT at Aberdeen Proving Ground, Maryland and airborne training at Fort Benning, Georgia before being transferred to Fort Bragg, North Carolina.

7.  On 4 August 1978, NJP was imposed against him for failure to go to his place of duty.

8.  On 4 December 1978, NJP was imposed against him for failure to go to his place of duty.

9.  The applicant deliberately terminated his airborne status, on 1 February 1979.

10.  The applicant went AWOL on 7 May 1979 and was absent in a desertion status when he was arrested by civil authorities in North Carolina for breaking and entering on 9 September 1979.  He was convicted and sentenced to 30 days in jail. 

11.  The facts and circumstances surrounding the applicant’s administrative discharge are not present in the available records because they were loaned to the Department of Veterans Affairs (VA) in 1989.  However, the available records do contain a duly-authenticated DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows the applicant was discharged under other than honorable conditions on 25 October 1979 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 1 year, 4 months, and 25 days of active service and he had 142 days of lost time due to being AWOL and imprisonment.

12.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides 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 at any time after charges have been preferred.  A condition of submitting such a request is that the individual concerned must admit guilt to the charges against him or her or of a lesser included offense which authorizes the imposition of a bad conduct or dishonorable discharge and he or she must indicate he or she has been briefed and understands the consequences of such a request as well as the discharge he or she might receive.  A discharge under other than honorable conditions is normally considered appropriate.

14.  Army Regulation 635-200, paragraph 3-7b, provides that 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.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations, with no violations of any of the applicant’s rights.  Accordingly, the type of discharge directed and the reasons were appropriate under the circumstances.

2.  The applicant's contentions have been noted and they are not sufficiently mitigating to warrant relief under the circumstances when considering his overall undistinguished record of service and his repeated acts of misconduct.  His service simply does not rise to the level of under honorable conditions.

3.  Therefore, in the absence of evidence to show otherwise, there appears to be no basis to grant his request for an upgrade of his 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)                                         AR20110016179



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ABCMR Record of Proceedings (cont)                                         AR20110016179



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