IN THE CASE OF:	  

	BOARD DATE:	  
	DOCKET NUMBER:  AR20080004838 


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, characterized as under other than honorable conditions (UOTHC), be upgraded.

2.  The applicant states, in effect, that he was young and foolish and now he is a changed man.    

3.  The applicant provides no additional documentation to support his request.  

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 show he enlisted in the Regular Army on 11 June 1975.  He completed basic training at Fort Dix, New Jersey, and advanced individual training at Fort Bragg, North Carolina.  Upon completion of his training, he was awarded the military occupational specialty 76V, Storage Supplyman.  He was advanced to PFC/Private First Class, on 1 December 1976.

3.  The applicant’s records show that he received an Article 15 on 18 July 1977 for disorderly conduct.  His punishment consisted of a forfeiture of $75.00 (suspended for 60 days) and 14 days of restriction.  The applicant appealed the punishment imposed and on 5 August 1977, his appeal was denied.

4.  The applicant’s records also show that he had several counseling statements for missing formation, failure to show-up for work, and for invasion of another Soldier’s privacy.  

5.  On 29 August 1977, the applicant was involved in a serious off-post incident which resulted in him being charged with aggravated assault.  

6.  On 15 September 1977, the applicant’s commander forwarded the court-martial charges to the battalion commander for appropriate action.  He recommended that the applicant be tried by Special Court-Martial empowered to adjudge a bad conduct discharge.  On 16 September 1977, his battalion commander forwarded the recommendation to the Support Command Commander for action. 

7.  On 28 September 1977, the Staff Judge Advocate, Headquarters, Eight US Army Area Command (Provisional), after having reviewed the evidence, also recommended the applicant be tried by special court-martial empowered to adjudge a bad conduct discharge. 

8.  On 6 October 1977, the applicant consulted with legal counsel and voluntarily requested discharge, for the good of the service, under the provisions of Army Regulation 635-200, chapter 10.  The applicant acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA) if an UOTHC discharge were issued.  He was advised that he could submit a statement in his own behalf; however, he declined.  

9.  On 17 October 1977, the separation authority approved the applicant's request for discharge and directed that he be furnished an UOTHC discharge and that he be reduced to the lowest enlisted grade.  

10.  The applicant was discharged in pay grade E-1 on 3 November 1977.  He had completed a total of 2 years, 4 months, and 23 days of creditable active service.

11.  The applicant’s records were reviewed on 7 March 1979 by the ADRB.  On 14 March 1979, the ADRB denied the applicant's petition to upgrade his discharge.

12.  The applicant submitted a request for a personal appearance before the ADRB in 1993.  The applicant was scheduled to appear before the ADRB on 
22 March 1993; however, his records show that he telephonically requested to appear before the travel panel, which was scheduled for July 1993.  There is no documentation in his records to show that he did appear before the travel panel.  

13.  The applicant’s records show that he submitted another request for his records to be reviewed; however, his request was returned without action based on the fact that his records had been previously reviewed and a denial decision was rendered. 

14.  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 UOTHC was normally considered appropriate. 

15.  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.

16.  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.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the applicant's request for discharge was made under coercion or duress. 

2.  The type of separation directed and the reasons for that separation appear to have been appropriate considering all the available facts of the case.

3.  The applicant states, in effect, that he was young and foolish and now he is a changed man.  The applicant’s age was taken into consideration; he was 19 years of age at the time of his entry on active duty and was 21 years 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 age or of a younger age who served successfully and completed their service obligation.  

4.  There is no evidence in the applicant's records, and the applicant has provided no evidence, to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge to a general or honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.  

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.

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)                                         AR20080004838



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ABCMR Record of Proceedings (cont)                                         AR20080004838



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