RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 4 March 2008 DOCKET NUMBER: AR20070015097 I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual. Ms. Catherine C. Mitrano Director Mrs. Nancy L. Amos Analyst The following members, a quorum, were present: Mr. James E. Anderholm Chairperson Mr. William D. Powers Member Mr. Jerome L. Pionk Member The Board considered the following evidence: Exhibit A - Application for correction of military records. Exhibit B - Military Personnel Records (including advisory opinion, if any). THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. The applicant requests that his discharge be upgraded. 2. The applicant states he was told his discharge would be upgraded to honorable after 6 months. 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. After having had prior service in the U. S. Army Reserve, the applicant enlisted in the Regular Army on 16 April 1981. He was promoted to Specialist Four, E-4 on 1 June 1983 in military occupational specialty 84B (Still Photographic Specialist). 3. On 5 April 1985, the applicant accepted non-judicial punishment under Article 15, Uniform Code of Military Justice for disobeying a lawful command from his superior commissioned officer. His punishment was a reduction to Private, E-1 and a forfeiture of $300.00 pay for two months. 4. The court-martial charge sheet is not available. Only the approval authority’s action on the applicant’s request for discharge for the good of the service in lieu of court-martial is available. 5. On 12 July 1985, the appropriate authority approved the applicant’s request for discharge under the provisions of Army Regulation 635-200, chapter 10 and directed he be issued a Discharge Under Other Than Honorable Conditions Certificate. 6. On 22 July 1985, the applicant completed a mental status evaluation and was found to be mentally responsible and to have the mental capacity to understand and participate in proceedings. 7. On 22 July 1985, the applicant was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial with a discharge under other than honorable conditions. He had completed a total of 4 years, 10 months, and 1 day of creditable active service with no lost time. 8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, 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. A discharge under other than honorable conditions is normally considered appropriate. 9. Army Regulation 635-200, 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. 10. Army Regulation 635-200, 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. A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization. 11. 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. DISCUSSION AND CONCLUSIONS: 1. Except for the approval authority’s action, the applicant’s discharge packet is not available. In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and that the applicant’s characterization of service as under other than honorable conditions was commensurate with the offense(s) charged and his overall record of service. 2. Therefore, there is insufficient evidence that would warrant granting the relief requested. BOARD VOTE: ________ ________ ________ GRANT FULL RELIEF ________ ________ ________ GRANT PARTIAL RELIEF ________ ________ ________ GRANT FORMAL HEARING __jea___ __wdp___ __jlp___ 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. __James E. Anderholm__ CHAIRPERSON INDEX CASE ID AR20070015097 SUFFIX RECON DATE BOARDED YYYYMMDD TYPE OF DISCHARGE UOTHC DATE OF DISCHARGE 19850722 DISCHARGE AUTHORITY AR 635-200, ch 10 DISCHARGE REASON A70.00 BOARD DECISION (NC, GRANT , DENY, GRANT PLUS) REVIEW AUTHORITY ISSUES 1. 110.00 2. 3. 4. 5. 6.