BOARD DATE:	  22 January 2013

		DOCKET NUMBER:  AR20120012873 


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 under other than honorable conditions discharge.

2.  He states he should have been given an honorable discharge due to time served. 

3.  He provides no additional documentary 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.  The applicant enlisted in the Regular Army on 5 October 1976.  He completed training and was awarded the military occupational specialty of 94B (food service specialist).  The highest rank/grade he held was private two/E-2.
3.  His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) during the period 15 August-21 September 1977.  His record shows he was apprehended by civil authorities and returned to the military on 22 September 1977.

4.  His record contains a DA Form 4187 (Personnel Action) which shows he was confined by military authorities (pre-trial confinement) on 26 September 1977.  The period of confinement is unknown.   

5.  His discharge packet is not contained in his records.  However, his record contains a DD Form 214 (Report of Separation from Active Duty) that shows on 21 October 1977, he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  Item 27 (Remarks) contains the entry "administrative discharge - conduct triable by court-martial."  He was given an under other than honorable conditions discharge.  His DD Form 214 shows he completed 11 months and 9 days of total active service with 38 days of time lost.

6.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-200 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 Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge were accepted, the Soldier could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  They would also acknowledge that they had been advised and understood the possible effects of a discharge under other than honorable conditions; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Veterans Administration; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge that they understood they may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.



	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.  His records show he was AWOL for 38 days.  He was voluntarily discharged under the provisions of Army Regulation 635-200, chapter 10.  In order to be discharged under chapter 10, he would have voluntarily requested discharge in lieu of a trial by court-martial.

2.  While the Board does not have his discharge packet, 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.

3.  In view of the foregoing, there is no 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)                                         AR20120012873



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ABCMR Record of Proceedings (cont)                                         AR20120012873



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