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ARMY | BCMR | CY2008 | 20080010581
Original file (20080010581.txt) Auto-classification: Denied

		IN THE CASE OF:	  

		BOARD DATE:	       4 November 2008

		DOCKET NUMBER:  AR20080010581 


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 that his undesirable discharge (UD) be upgraded.

2.  The applicant states, in effect, that he was young and immature and was forced to accept the discharge.  He wanted to stay in the Army and still desires to be connected to the military in some way.  He admits to have made some poor choices but “thought” he could overcome the problems if he was given a proper chance.

3.  The applicant provides no supporting documentation.

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 entered active duty on 13 January 1975, completed training, and was awarded the military occupational specialty (MOS) 17K (Ground Surveillance Radar Mechanic). 

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, as follows:

	a.  on 28 April 1975, for being absent from his place of duty;

	b.  on 12 November 1975, for assault on a private and for being disrespectful in language towards a noncommissioned officer;

	c.  on 22 January 1976, for two occurrences of being absent from his place of duty;

	d.  on 27 February 1976, for being absent from his place of duty;

	e.  on 29 March 1976, for being absent from his place of duty; and 

	f.  on 20 October 1976, for going from his guard post with intent to abandon.

4.  On 5 October 1976, a board of officers was convened to determine if the applicant should be separated for misconduct.  The applicant was present and represented by military counsel.  The board found there was sufficient reason to recommend that the applicant be discharged under Army Regulation 635-200, paragraph 13-5a for misconduct and that he be given an undesirable discharge (UD).

5.  On 30 October 1976, the discharge authority approved the board of officers recommendations.  He waived the reassignment requirement and directed the applicant be issued an UD.

6.  The record states that to avoid being placed in confinement for assault, the applicant went AWOL (absent without leave) on 29 October 1976.  He returned to military control on 2 November 1976 and was placed in confinement.

7.  The applicant was discharged on 15 November 1976.  He had 1 year, 9 months, and 16 days of creditable service with 17 days of lost time.

8.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.


9.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policy and prescribes the procedures for administrative separation of enlisted personnel.  Paragraph 13-5 provided for the separation for unfitness and misconduct, which included frequent incidents of a discreditable nature, sexual perversion, drug abuse, shirking, failure to pay just debits, failure to support dependents and homosexual acts.  When separation under this provision was warranted an undesirable discharge was normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's overall record of military service.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board found no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  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

___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)                                         AR20080010581



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ABCMR Record of Proceedings (cont)                                         AR20080010581



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