IN THE CASE OF:	  

		BOARD DATE:	  2 August 2012

		DOCKET NUMBER:  AR20120002570 


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 upgrade of his discharge and removal of the narrative reason and authority for the discharge. 

2.  The applicant states that his wife left him and took the children.  He was absent without leave (AWOL) because the company commander would not authorize leave so that he could find the children.  The first sergeant told him that the discharge would be upgraded after 90 days.  He recently learned this did not take place.  He thinks the reduction to pay grade E-1 and the discharge was cruel and unusual punishment to receive from a nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ).

3.  The applicant provides copies of his two DD Forms 214 (Report of Transfer or Discharge).

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 for 3 years on 29 September 1967 and completed his enlistment without a discreditable incident of record.  On 28 September 1970 he was released from active duty with an honorable characterization of service and transferred to the U.S. Army Reserve as a sergeant.  His awards included the Army Good Conduct Medal and the Armed Forces Expeditionary Medal (Korea). 

3.  He again enlisted in the Regular Army, on 11 August 1972. 

4.  The applicant received NJP on:

* 15 January 1973 for absence from his appointed place of duty  
* 13 February 1973 for AWOL from 23 January to 13 February 1973 

5.  He was then AWOL from 22 February to 23 March 1973 and from 24 March to 18 May 1973.  

6.  The applicant's discharge processing documents are not contained in the available records.  His second DD Form 214 shows he was discharged on         25 July 1973 under the provisions of Army Regulation 635-200, chapter 10.  He received an under other than honorable conditions discharge for the good of the service in lieu of trial by court-martial.  He had 107 days lost time due to AWOL.

7.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel:

   a.  Chapter 10 of the version in effect at the time provided that a member who 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 or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  Reduction to pay grade E-1 always accompanies a discharge under other than honorable conditions.
   
   b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

   c.  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.

8.  Army Regulation 15-185 (Army Board for Correction of Military Records), paragraph 2–9 (Burden of Proof) 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.”

DISCUSSION AND CONCLUSIONS:

1.  The applicant provided no evidence to support his application.

2.  The applicant's separation processing documents are not available for review.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 25 July 1973 under the provisions of Army Regulation 635-200, chapter 10.  In less than a year he had 107 days lost time due to AWOL and he received an under other than honorable conditions discharge for the good of the service in lieu of trial by court-martial.  

3.  In the absence of evidence to the contrary administrative regularity in the applicant's discharge processing is presumed.  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.  The applicant has provided no evidence that would indicate the contrary.  Furthermore, the applicant’s discharge accurately reflects his overall record of service.  

4.  There is no evidence to show that the applicant's first sergeant gave him any advice and it is unreasonable to presume that his reduction and discharge was the result of anything other than his own request under the chapter 10 process.

5.  The U. S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

6.  In view of the foregoing there is no basis for granting the applicant's requested relief.

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)                                         AR20120002570





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120002570



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1