IN THE CASE OF:	  

		BOARD DATE:	    8 March 2012

		DOCKET NUMBER:  AR20110016869 


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 undesirable discharge.

2.  He states, in effect, his wife left him, he was drinking, he got into a fight with someone who was with his wife, and he was jailed.  He then started using drugs and drinking heavily which led to several driving while intoxicated incidents and he was later hospitalized for a long period of time.  

3.  He provides:

* a Department of Veterans Affairs (VA) Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)
* a State of North Carolina Criminal Record Search with six pages of attached data
* a self-authored statement
* a newspaper article
* nine letters of support

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.  His military records show he was inducted into the Army on 24 November 1970.  On 24 August 1972, he reenlisted for a period of 4 years.  He was awarded the military occupational specialty of armor crewman.  The highest rank/grade he held was specialist four/pay grade E-4.

3.  He accepted nonjudicial punishment (NJP) on 30 April 1974, for being absent without leave from on or about 9 March to on or about 14 April 1974.

4.  His complete discharge packet is not contained in his records.  However, on 24 February 1975, he was discharged under the provisions of Army Regulation 
635-200 (Personnel Separations), chapter 10, for the good of the service - in lieu of court-martial, with issuance of a DD Form 258A (Undesirable Discharge Certificate).  The DD Form 214 he was issued shows he completed a total of 3 years, 5 months, and 1 day of total creditable active service with 300 days time lost.

5.  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.

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

	a.  Chapter 10, in effect at the time, stated 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 at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense(s) charged, the type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  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 met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate. 

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  He received NJP for being AWOL.  He had a total of 300 days of time lost.  Therefore, his service was unsatisfactory.

2.  It appears he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

3.  While his discharge packet is not available, 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.  In view of the foregoing, there is an insufficient basis for upgrading his discharge to an honorable or a 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)                                         AR20110016869



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ABCMR Record of Proceedings (cont)                                         AR20110016869



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