RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2007
	DOCKET NUMBER:  AR20060009938 


	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.


	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, in effect, that his general discharge be upgraded to an honorable discharge.

2.  The applicant essentially states that he has had to spend his life trying to make up for mistakes he made as a young boy, age 17, and asks that he please be forgiven. 

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 this application.   

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged injustice which occurred on 9 February 1981, the date of his discharge from the Regular Army.  The application submitted in this case is dated 16 June 2006.

2.  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 allows the Army Board for Correction of Military Records (ABCMR) to excuse failure to file within the 3-year statute of limitations if the ABCMR determines that it would be in the interest of justice to do so.  In this case, the ABCMR will conduct a review of the merits of the case to determine if it would be in the interest of justice to excuse the applicant’s failure to timely file.

3.  The applicant’s military records show that he enlisted in the Regular Army on 
25 February 1980.  He completed basic and advanced individual training and was awarded military occupational specialty 72E (Telecommunications Center Specialist).  He was then reassigned to Fort Bragg, North Carolina in August 1980, and was assigned to Company A, 327th Signal Battalion.

4.  The applicant accepted nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the proper time prescribed to his appointed place of duty, willfully disobeying a lawful order from a superior noncommissioned officer, and treating a superior noncommissioned officer with disrespect.  His punishment consisted of 7 days confinement to a correctional custody facility, and a forfeiture of $100.00, the latter which was suspended.

5.  On or about 26 January 1981, the applicant’s company commander notified him that he was initiating action to release him from active duty under the provisions of paragraph 5-31 (Expeditious Discharge Program), Army Regulation 635-200 (Enlisted Personnel).  The reasons for his proposed actions were the applicant’s continuous failure to obey orders and carry out instructions without constant supervision, bad personal appearance and behavior, and his failure to adapt to military lifestyles.  The applicant’s company commander also essentially informed that if he was furnished a general discharge, he could expect to encounter substantial prejudice in civilian life, and that he had the right to consult with a Judge Advocate Officer prior to completing his acknowledgement.  

6.  On 26 January 1981, the applicant acknowledged notification of his proposed separation under the provisions of paragraph 5-31, Army Regulation 635-200.  He understood that if his service was characterized as under honorable conditions that he may expect to encounter substantial prejudice in civilian life, and acknowledged that he was provided the opportunity to consult with a Judge Advocate Officer.  Although it is not clear if the applicant waived representation by legal counsel, he was advised by a Judge Advocate General captain of the basis for the contemplated separation and its effect, and the rights available to him.    

7.  In an undated 1st endorsement, the proper authority approved the discharge of the applicant from the service under the provisions of the paragraph 5-31, Army Regulation 635-200, and directed that he receive a General Discharge Certificate.  He also recommended that the applicant not be assigned to the Individual Ready Reserve, and that he be immediately discharged from the United States Army.

8.  On 9 February 1981, the applicant was discharged accordingly.  The 
DD Form 214 that was issued to him at the time of his discharge shows that he was discharged in the rank of private/pay grade E-2, and served 11 months and 15 days of active duty service.  Item 28 (Narrative Reason for Separation) has an entry of “Expeditious Discharge Program.”  

9.  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.

10.  The applicant contends that his discharge should be upgraded because he was a young boy, age 17, at the time of his service.  Records show that the applicant was 18 years of age at the time he accepted NJP under Article 15 of the UCMJ.  However, there is no evidence that indicates the applicant was any less mature than other soldiers of the same age who successfully completed military service.

11.  Army Regulation 635-200, paragraph 3-7, 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.  Whenever there is doubt, it is to be resolved in favor of the individual.

12.  Paragraph 3-7 of Army Regulation 635-200 also 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 contends that his general discharge should be upgraded to an honorable discharge.

2.  The applicant’s contention that his discharge should be upgraded because he was a young boy, age 17, was noted.  However, records show the applicant was no less mature than other Soldiers of the same age who successfully completed military service obligation.

3.  Evidence of record shows the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the proper time prescribed to his appointed place of duty, willfully disobeying a lawful order from a superior noncommissioned officer, and treating a superior noncommissioned officer with disrespect.  Given these instances of misconduct, the applicant failed to provide evidence which proves that the discharge was rendered unjustly, in error, or that there were mitigating circumstances which warrant the upgrade.  Absent such evidence, regularity must be presumed in this case.

4.  The applicant’s record of indiscipline does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.
5.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 9 February 1981; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 
8 February 1984.  The applicant did not file within the 3-year statute of limitations and has not provided a compelling explanation or evidence to show that it would be in the interest of justice to excuse failure to timely file in this case.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___JA___  ___SF  __  ___RV __  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that 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.

2.  As a result, the Board further determined that there is no evidence provided which shows that it would be in the interest of justice to excuse the applicant's failure to timely file this application within the 3-year statute of limitations prescribed by law.  Therefore, there is insufficient basis to waive the statute of limitations for timely filing or for correction of the records of the individual concerned.




____James Anderholm______
          CHAIRPERSON




INDEX

CASE ID
AR20060009938
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070306
TYPE OF DISCHARGE
GD
DATE OF DISCHARGE
19810209
DISCHARGE AUTHORITY
AR 635-200, PARAGRAPH 5-31 
DISCHARGE REASON
EXPEDITIOUS DISCHARGE PROGRAM
BOARD DECISION
DENY
REVIEW AUTHORITY
AR 15-185
ISSUES         1.
144.6750.0000
2.

3.

4.

5.

6.