BOARD DATE:	  9 August 2012

		DOCKET NUMBER:  AR20120002738 


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 an honorable discharge.

2.  The applicant states he was told his discharge would be upgraded automatically after 2 years if he did not get into any trouble.  He did not quit because he could not take it, he quit because his father died.  He was young and he did not handle his father's death properly.  He started drinking badly and went from being one of the best Soldiers in his unit to wallowing in self pity.  He applied for a prison guard job and he was told he had to have an honorable discharge.  He needs an honorable discharge to wear another type of uniform.

3.  The applicant provides no additional evidence.

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 1 December 1981 at the age of 18 for a period of 3 years.  He immediately reenlisted on 27 June 1984 at the age of 
20 for a period of 4 years.

3.  On 5 March 1985, he was absent without leave (AWOL) at the age of 21 and he was dropped from the rolls on 4 April 1985.  On 11 October 1989, he surrendered to military authorities at Fort Bragg, NC.

4.  His separation processing package was not available for review.  The facts and circumstances pertaining to his discharge are not on file.

5.  On 4 January 1990, he was discharged under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) for the good of the service in lieu of trial by court-martial.  He completed 3 years, 5 months, and 27 days of net active service that was characterized as under other than honorable conditions.  He had 1,206 days of chargeable time lost.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he had continuous honorable active service from 1 December 1981 to 26 June 1984.

6.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.

	a.  Chapter 10 provided 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 had been preferred.  The request must have included 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(s) 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 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 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 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.

7.  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.  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 submits an application to either the Army Discharge Review Board or the ABCMR requesting change in discharge.  Changes may be warranted if the ABCMR determines that the characterization of service or the reason for discharge or both were improper or inequitable.  

2.  His age at the time of enlistment was noted.  However, he was age 21 when he reenlisted and age 22 when his period of unauthorized absence began.  Many Soldiers enlisted at a younger age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

3.  Although his separation package was not available for review with this case in order to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant 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, he would have admitted he was guilty of the offense he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

4.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  Therefore, the type of discharge and the reason for separation are appropriate considering the available facts of the case.

5.  He had 1,206 days of chargeable lost time during his second enlistment.  He was AWOL from 5 March 1985 to 11 October 1989.  The length of his unauthorized absence clearly shows his service to be unsatisfactory.  

6.  In view of the above, there is an insufficient basis to upgrade his discharge to an honorable discharge 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)                                         AR20120002738



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ABCMR Record of Proceedings (cont)                                         AR20120002738



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