IN THE CASE OF:
BOARD DATE: 3 July 2008
DOCKET NUMBER: AR20080005575
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 a discharge upgrade to general under honorable conditions.
2. The applicant states, in effect, he was too young and immature. His father was dying and he wanted to be with him. Because of his situation, he could not focus on his job.
3. The applicant provides no additional evidence.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicant was born on 28 September 1958. He enlisted in the Regular Army for 3 years on 27 January 1976; he was 17 years, 4 months of age.
3. The applicant's separation packet is not in his record; however, his DD Form 214 (Report of Separation from Active Duty) shows he was given an under other than honorable conditions discharge on 29 September 1978 [one day after his 20th birthday] under the provisions of Army Regulation 635-200, chapter 14, for misconduct frequent incidents of a discreditable nature with civil or military authorities.
4. The applicant's records do contain four records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:
a. failing to report for duty on 6 March 1977, for which he received a suspended reduction, a forfeiture of $97 pay per month for 1 month, and extra duty for 14 days;
b. failing to report for formation on 8 and 10 June 1977, for which he received a forfeiture of $72 pay per month for 1 month, and 14 days of extra duty;
c. negligently failing to guard his post on guard duty on 24 October 1977, for which he received a reduction from Specialist to Private First Class, a suspended forfeiture of $45 pay per month for 1 month, and extra duty for 14 days; and
d. being absent without leave (AWOL) from 16 January 1978 to 12 February 1978, for which he received a suspended reduction to Private, a forfeiture of $221 pay per month for 1 month, and extra duty for 14 days.
5. There is no record the applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.
6. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Essentially, it states an honorable discharge is a separation with honor, and is appropriate when the quality of the Soldiers service is so meritorious that any other characterization would be clearly inappropriate. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.
DISCUSSION AND CONCLUSIONS:
1. The applicant requests an upgrade to a general discharge.
2. The applicant was young when he enlisted in the Regular Army; however, he was 20 years old when he was discharged. Furthermore, there is no evidence he was any less mature than other Soldiers of similar age who successfully completed their periods of service.
3. There is no evidence in the record and the applicant has provided no evidence that his father was ill and dying, and that this was the reason for his discharge. In any event, the Army has provisions for Soldiers to receive emergency leave in the event of the illness or death of a loved one.
4. Although the exact reasons for the applicant's discharge under other than honorable conditions are not available, absent evidence to the contrary, regularity is presumed in the discharge process.
5. In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily 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
__xxx___ __xxx___ __xxx___ 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.
XXX
_______________________
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.
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