IN THE CASE OF:	  

		BOARD DATE:	  23 February 2012

		DOCKET NUMBER:  AR20110016375 


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 discharge under honorable conditions.

2.  The applicant states that there was no error in his case; however, he humbly requests that his discharge be upgraded to under honorable conditions based purely on his honorable life after his discharge in which he applied the principles of a “Soldier” to obtain his life of honor.

3.  The applicant provides no additional documents with 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.  The applicant enlisted in the Regular Army in Long Island, New York, on 29 June 1977, for a period of 3 years and training as a medical specialist.  He completed basic training at Fort Dix, New Jersey and advanced individual training at Fort Sam Houston, Texas.

3.  20 October 1977, nonjudicial punishment (NJP) was imposed against him at Fort Sam Houston for disobeying a lawful order from a superior noncommissioned officer.

4.  He subsequently served at West Point, New York and Fort Bragg, North Carolina.  On 20 March 1979, NJP was imposed against him for disobeying a lawful order from a noncommissioned officer (NCO) and being disrespectful in language towards an NCO.

5.  On 3 July 1979, NJP was imposed against him for disobeying a lawful order from a superior noncommissioned officer.

6.  On 8 February 1980, he was transferred to Korea for assignment to an air defense artillery battery.

7.  His records show that he went absent without leave (AWOL) from 3 December to 11 December 1980, from 12 December to 15 December 1980, and from 27 December 1980 to 6 January 1981.

8.  The facts and circumstances surrounding his administrative discharge are not present in the available records because they were loaned to the Veterans Administration in New York on 19 February 1982.  However, his records contain a DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows he was discharged under other than honorable conditions on 
20 February 1981 under the provisions of Army Regulation 635-200, chapter 10, in lieu of trial by court-martial.  He had served 3 years and 7 months of active service and he had 22 days of lost time due to being AWOL. 

9.  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.

10.  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.

11.  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)                                         AR20110016375



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ABCMR Record of Proceedings (cont)                                         AR20110016375



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