IN THE CASE OF:
BOARD DATE: 14 August 2014
DOCKET NUMBER: AR20130021659
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 discharge under other than honorable conditions to a general discharge.
2. The applicant states he was advised that after so many years it would be upgraded.
3. The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty).
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 30 September 1978 for a period of 3 years. He completed his training and was awarded military occupational specialty 03C (physical activities specialist).
3. Records show he was absent without leave (AWOL) from 2 February to 4 February 1979.
4. On 14 February 1979, nonjudicial punishment was imposed against him for failing to go at the time prescribed to his appointed place of duty.
5. On 9 May 1979, he was convicted by a summary court-martial of failing to go at the time prescribed to his appointed place of duty, leaving his appointed place of duty without authority, and disobeying a lawful order. He was sentenced to confinement at hard labor for 30 days and a forfeiture of $200.00 pay. On 9 May 1979, the convening authority approved the sentence.
6. He was AWOL again on 1 October 1979. He was apprehended by civil authorities on 12 August 1980 and returned to military control.
7. His records are void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 shows he was discharged under other than honorable conditions on 24 September 1980 in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10. He completed a total of 1 year and 18 days of creditable active service with 311 days of lost time.
8. There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.
b. 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.
10. The U.S. Army does not currently 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 the character of service or the reason for discharge or both were improper or inequitable.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he was advised that after so many years his discharge would be upgraded. However, a discharge upgrade is not automatic.
2. He requests an upgrade of his discharge under other than honorable conditions to a general discharge. In the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed the authority and reason for his discharge were commensurate with his overall record of service.
3. In view of the foregoing, there is an insufficient evidentiary 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 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) AR20130021659
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ABCMR Record of Proceedings (cont) AR20130021659
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