RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070003806 


	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

Ms. Joyce A. Wight 

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William Blakely

Member

Mr. Donald L. Lewy

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, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to a general discharge.

2.  The applicant states, in effect, that he was 17 years old, got into a fight, and was young.  He states that when it was time to fight for his country he was there to support his country.  He was immature at the time and would like to qualify for VA (Veterans Administration) benefits.

3.  The applicant provides no additional documentation in support of his request. 

CONSIDERATION OF EVIDENCE:

1.  The applicant is requesting correction of an alleged error or injustice which occurred on 21 March 1975, the date of his discharge.  The application submitted in this case is dated 27 February 2007 but was received for processing on 14 March 2007.

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 record shows he enlisted in the Regular Army on 26 December 1973, at the age of 17 years, 11 months, and 29 days.  His date of birth is 28 December 1955.  The applicant successfully completed basic combat training at Fort Knox, Kentucky, and advanced individual training at Fort Leonard Wood, Missouri.  On completion of his advanced training, he was awarded the military occupational specialty (MOS), 12B, Combat Engineer.  He was promoted to pay grade E-2 on 26 April 1974.

4.  Between 21 May 1974 and 14 November 1974, he received nonjudicial punishment (NJP) on three occasions under Article 15, of the UCMJ (Uniform Code of Military Justice), for missing movement, for being absent from his appointed place of duty, and for disobeying a lawful order from his superior commissioned officer.  His punishments consisted of forfeitures of pay and extra duties. 
5.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy his DD Form 214 (Report of Separation from Active Duty) which shows that on 21 March 1975, he was discharged, in the pay grade of E-1, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He was furnished an undesirable discharge, characterized as UOTHC.  He had a total of 1 year, 2 months, and 25 days of creditable service.

6.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.  

7.  Army Regulation 635-200 set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service,
in lieu of trial by court-martial.  An undesirable discharge was normally considered appropriate. 

8.  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.

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.  Whenever there is doubt, it is to be resolved in favor of the individual.

DISCUSSION AND CONCLUSIONS:

1.  In the absence of evidence to the contrary, it must be presumed that the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.
2.  All the facts and circumstances pertaining to his discharge are unavailable for review. 

3.  The applicant stated that he was young, only 17 years of age, when he got into a fight.  It is noted that he was 17 years, 11 months, and 29 days of age at the time of his enlistment and was 19 years, 2 months, and 24 days of age on the date of his discharge.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

4.  The applicant’s contention that when it was time to fight for his country he was there was considered.  However, it does not support an upgrade of his undesirable discharge.

5.  The applicant contends that he would like to qualify for VA benefits.  The applicant is advised that the Board does not change the character of service nor does it upgrade discharges for the purpose of enabling former service members to obtain eligibility for benefits.  

6.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

7.  Records show the applicant should have discovered the alleged error or injustice now under consideration on 21 March 1975; therefore, the time for the applicant to file a request for correction of any error or injustice expired on 20 March 1978.  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

__WDP__  __WB___  __DLL __  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.




_____William D. Powers___
          CHAIRPERSON




INDEX

CASE ID
AR20070003806
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070816
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19750321
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.