BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140002991 


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.  The applicant states he didn't really do anything major.  They wanted him to do something and he didn't do it.  It shouldn't have been more than an Article 15 (nonjudicial punishment (NJP)) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ)).  He was using drugs and has been in and out of sobriety.  He is now clean and still in a program.

3.  The applicant 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.  On 20 May 1969, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 76A (Supply Clerk).  The highest rank/grade he held was private/E-2.

3.  On 13 March 1970, he received NJP under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 4-5 January 1970 and willfully disobeying a lawful order from a superior noncommissioned officer (NCO). 

4.  His record contains a DA Form 268 (Report to Suspend Favorable Actions (FLAG)), dated 31 March 1970, that shows he was pending trial by special court-martial.  Section IV (Authentication) of the form shows he was approved for separation on 27 May 1970, under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 10-6, and he would be assigned separation program number (SPN) 246 and furnished an Undesirable Discharge Certificate upon separation.

5.  His discharge packet is not available for review; however, his record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 8 June 1970 after completing         1 year and 18 days of net creditable active military service with 1 day of lost time.  This form shows an SPN of 246, denoting he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service.  It also shows his service was characterized as under other than honorable conditions and he was issued an Undesirable Discharge Certificate.

6.  His records document no acts of valor, significant achievement, or service warranting special recognition.

7.  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.

8.  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 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.  An Undesirable Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

	b.  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.  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.

9.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  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's contentions are noted; however, the evidence of record does not support his request for an upgrade of his discharge.

2.  He received NJP on one occasion for being AWOL.  It appears that court-martial charges were preferred against him; however, he elected to be discharged in lieu of trial by court-martial.

3.  To be discharged under the provisions of Army Regulation 635-200, chapter 10, he would have voluntarily requested discharge in lieu of trial by court-martial.  In doing so, he would have waived his opportunity to appear before a court-martial.  At the time, an undesirable discharge was normally considered appropriate for Soldiers separated for the good of the service.

4.  In the absence of evidence to the contrary, the presumption of administrative regularity must be applied.  As such, even though the applicant's records do not contain his discharge packet, it is presumed that his discharge process was accomplished in accordance with applicable regulations.

5.  In view of the foregoing, there is no basis for granting the applicant a general discharge or an honorable 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)                                         AR20140002991



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ABCMR Record of Proceedings (cont)                                         AR20140002991



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