IN THE CASE OF:	 

	BOARD DATE:	  17 June 2008

	DOCKET NUMBER:  AR20070018335 


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, in effect, that his discharge be upgraded.

2.  The applicant states, in effect, that his under other than honorable conditions discharge should be upgraded.  The applicant continues that he was 18 years old when he disobeyed an order.  

3.  The applicant provides no additional documentary evidence in support of this 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 records are incomplete; however, the available records show he enlisted in the Regular Army on 27 November 1978, at the age of 18.  He completed basic combat training and was trained in, awarded and served in military occupational specialty (MOS) 11B (Combat Infantryman).  

3.  The applicant's records do not show any significant acts of valor during his military service.

4.  The facts and circumstances pertaining to the applicant's discharge are not in the available record.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was discharged on 9 January 1980 under the provisions of Army Regulation 635-200, paragraph 14-33b(1) by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities.  He completed 1 year, 1 month, and 1 day of creditable active military service with 9 days of lost time due to being absent without leave (AWOL).  

5.  Item 29 (Date of Time Lost during this Period) on his DD Form 214 shows he was AWOL during the period 25 October 1979 through 4 November 1979.  

6.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

8.  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.  


9.  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 because he was 18 years old and acknowledged disobeying an order was carefully considered.  

2.  The applicant's record shows that the applicant was almost 19 years of age at the time of his discharge.  There is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The applicant's military service records show that he was separated on 9 January 1980, under the provisions of Army Regulation 635-200, paragraph 14-33b for frequent involvement in incidents of a discreditable nature with civil or military authority with an under other than honorable conditions discharge.  

4.  The applicant's records show that he had 9 days of lost time due to being AWOL.  Based on this record of indiscipline, 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, he is not entitled to either a general or an honorable discharge.

5.  In the absence of the applicant's discharge proceedings, it is presumed to have been administratively correct and in conformance with applicable regulations.  

6.  There is no evidence of record which indicates the actions taken in his case were in error or unjust.  Therefore, 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)                                         AR20070018335



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20070018335



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1