IN THE CASE OF: BOARD DATE: 28 September 2010 DOCKET NUMBER: AR20100010690 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 under other than honorable conditions discharge be upgraded to honorable. 2. The applicant states it has been 38 years and he wants to have an honorable discharge. 3. The applicant provides, in support of his application, copies of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and DD Form 215 (Correction to DD Form 214). 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 16 January 1969, the applicant enlisted in the Regular Army for 2 years. He completed his initial training and was awarded military occupational specialty 63A (Maintenance Mechanic). 3. Item 44 (Time Lost) of the applicant’s DA Form 20 (Enlisted Qualification Record) shows that he was absent without leave (AWOL) or in confinement: a. on 9 June 1969 (AWOL); b. from 9 October to 10 November 1969 (AWOL); c. from 13 to 24 November 1969 (pretrial confinement); d. from 25 November 1969 to 3 February 1970 (confinement); e. from 19 May to 5 July 1970 (confinement); f. from 16 to 30 July 1970 (civilian confinement); g. from 3 to 12 August 1970 (AWOL); h. from 14 to 20 October 1970 (AWOL); i. from 25 to 26 November 1970 (AWOL); and j. on 4 December 1970 (pretrial confinement). 4. The applicant accepted the following nonjudicial punishments: a. 23 April 1969: stole scuba shirt from main post exchange; b. 16 June 1969: AWOL for 1 day; and c. 19 August 1970: AWOL for 25 days. 5. On 25 November 1969, the applicant was convicted by a special court-martial for 32 days AWOL. 6. A letter in the applicant's records indicates that on 3 December 1970 his company commander forwarded court-martial charges along with documentary evidence to the Staff Judge Advocate. The enclosures are not available for review. 7. The applicant's request for discharge under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service is missing from the applicant's military records. However, the commanding general's approval of the applicant's request shows that the applicant made such a request on 22 December 1970 and that it was approved on 20 January 1971. 8. The applicant's DD Form 214 shows that he was administratively discharged on 25 January 1971, for the good of the service. His service was characterized as under other than honorable conditions. He had completed 1 year, 5 months, and 20 days of creditable active duty service and had 199 days of lost time due to AWOL and confinement. 9. In 1976, the applicant was issued DD Form 1953A (Clemency Discharge) pursuant to Presidential Proclamation 4313. 10. On 16 March 1981, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge. The ADRB determined that his discharge was proper and equitable and denied his request. 11. Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides 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 trail by court-martial. 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 (emphasis added), 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. 14. Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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 contends that it has been 38 years and his discharge should be upgraded to honorable. 2. 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. The character of the discharge is commensurate with his overall record. 3. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge. 4. In view of the foregoing, 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) AR20100010690 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20100010690 5 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1