IN THE CASE OF: BOARD DATE: 3 November 2009 DOCKET NUMBER: AR20090009656 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 a general discharge. 2. The applicant states that he was in jail receiving psychiatric treatment at the time of his discharge and that he was never given the opportunity to appeal his discharge. 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) in support of his application. 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 29 July 1977 for a period of 4 years. He successfully completed basic combat training, advanced individual training, and basic airborne training in military occupational specialty 11C (indirect fire infantryman). 3. On 16 August 1978, nonjudicial punishment was imposed against the applicant for possessing marijuana. His punishment consisted of a reduction to E-1 and extra duty. 4. On 14 April 1979, the applicant was arrested by civil authorities in Virginia and charged with assault and battery. He was released on bond. 5. On 21 April 1979, the applicant was arrested by civil authorities in North Carolina and charged with larceny. He was released on bond pending trial. 6. The applicant went absent without leave (AWOL) on 4 May 1979 and returned to military control on 7 May 1979. 7. On 9 May 1979, the applicant was arrested by civil authorities in North Carolina and charged with larceny. On 15 May 1979, he was convicted of larceny and sentenced to confinement for 6-18 months. 8. The facts and circumstances surrounding the applicant’s discharge are not contained in the available records. However, the applicant's DD Form 214 (Report of Separation form Active Duty) shows he was discharged under other than honorable conditions on 7 September 1979 under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct due to civil conviction. He had served 1 year, 8 months, and 26 days of total active service with 133 days of lost time due to confinement and AWOL. 9. There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 10. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense (military or civilian), and convictions by civil authorities. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. 11. 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. DISCUSSION AND CONCLUSIONS: In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations. Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service. As a result, there is no basis for granting the applicant's request. 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) AR20090009656 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090009656 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1