IN THE CASE OF: BOARD DATE: 24 June 2010 DOCKET NUMBER: AR20090017934 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 to an honorable discharge. 2. The applicant states that he was treated unfairly at the time when he was being transferred to Fargo, ND. * They did not want to help him out at all * He was being transferred to an Alaska military base * He called his Senior Noncommissioned Officer to advise him that he was snowed in and couldn’t report to the military base * They wouldn’t even give him a ride home 3. The applicant does not provide any additional documents 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's record shows he enlisted in the Regular Army on 7 August 1975. He was trained in and awarded military occupational specialty (MOS) 11B (Infantryman). The highest rank/grade he attained while serving on active duty was specialist four (SP4)/E-4. 3. The applicant’s records do not show any significant acts of valor during his military service. 4. On 24 September 1976, the applicant was convicted by a special court-martial of being absent without leave (AWOL) during the period 6 January 1976 to 15 January 1976. His punishment consisted of confinement at hard labor for 35 days, a forfeiture of $75.00 per month for 2 months, and a reduction to private (PV1)/E-1. On 7 December 1976, the unexecuted portion of his sentence to forfeiture of $75.00 per month for 2 months was remitted. 5. On 21 July 1978, a DD Form 458 (Charge Sheet) showed the applicant was charged with AWOL from on or about 21 May 1978 until on or about 13 July 1978. 6. On 24 July 1978, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him. Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service - in lieu of trial by court-martial. 7. In his request for discharge, the applicant indicated that he understood by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense, and the imposition of a bad conduct or dishonorable discharge was authorized. He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State law. 8. The applicant provided a statement with his request for discharge which essentially stated that he joined the Army because his Army recruiter told him of all the fun things he could do, but he really stretched the story a bit. He further stated he ran into some problems at home as well as in the Army and he can't be at both. He finally stated he knows he can make it in civilian life. 9. On 30 August 1978, the separation authority approved the applicant’s request for discharge and directed that he be reduced to PV1/E-1 and furnished an Under Other Than Honorable Conditions Discharge Certificate. On 25 September 1978, the applicant was discharged accordingly. The DD Form 214 he was issued confirms he completed a total of 2 years, 4 months, and 12 days of creditable active service with 280 days of time lost. 10. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations. 11. 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, 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. 12. 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. 13. 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: 1. The applicant’s contention that his under other than honorable conditions discharge should be upgraded to an honorable discharge was carefully considered and determined to be insufficient evidence. There is no evidence and the applicant did not submit any evidence to show that he received unfair treatment during his period of service. 2. The applicant’s record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge. Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant’s discharge accurately reflects his overall record of service. 3. Based on his record of indiscipline which includes over 280 days of time lost, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel. This misconduct also renders his service unsatisfactory. Therefore, the applicant is not entitled to either a general or an honorable discharge. 4. In view of the foregoing, there is no 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 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) AR20090017934 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090017934 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1