IN THE CASE OF:	   

		BOARD DATE:	        9 October 2008

		DOCKET NUMBER:  AR20080012713 


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 be upgraded to a general discharge.

2.  The applicant states that he believes the discharge is unjust because the leaders of his unit encouraged him to accept this type of discharge as opposed to specifying other options available to him at the time.  He contends that he was experiencing marital problems and that his immaturity convinced him that this was the best option.  He states that he has since grown and knows that this was not the right thing to do.  He further states that his leaders did not give him all the options available which might have made a difference.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).  

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 was born on 2 September 1949.  He enlisted on 5 September 1967 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty (MOS) 13F (cannoneer).  He was later awarded MOS 16F (light AD artillery crewman).  On 10 September 1969, he was honorably discharged for immediate reenlistment.  He reenlisted on 11 September 1969 for a period of 6 years.  

3.  On 2 September 1970, nonjudicial punishment was imposed against the applicant for being absent without leave (AWOL) for one day.  His punishment consisted of an oral reprimand. 

4.  On 10 February 1971, nonjudicial punishment was imposed against the applicant for two specifications of failure to repair.  His punishment consisted of a reduction to E-3 (suspended), a forfeiture of pay (suspended), restriction, extra duty, and an oral reprimand.  On 15 April 1971, the suspended portions of the punishment were vacated. 

5.  On 12 September 1972, contrary to his plea, the applicant was convicted by a special court-martial of larceny.  He was sentenced to forfeit $50 pay per month for 6 months.  On 16 October 1972, the convening authority approved the sentence. 

6.  On 14 May 1973, nonjudicial punishment was imposed against the applicant for possessing marijuana.  His punishment consisted of a forfeiture of pay, restriction, extra duty, a reduction to E-3 (suspended).

7.  On 30 January 1974, a bar to reenlistment was imposed against the applicant.

8.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, his records contain a document which shows he was charged with being AWOL for 5 hours on 20 November 1973, two specifications of failure to repair (on 17 December 1973 and 
18 December 1973), and disobeying a lawful order on 20 November 1973.

9.  The applicant’s DD Form 214 shows that he was discharged with an undesirable discharge on 26 February 1974 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  He had served a total of 6 years, 5 months, and 22 days of creditable active service.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that 
a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  At the time, an undesirable discharge was normally considered appropriate. 

12.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

13.  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.  Age is not a sufficiently mitigating factor.  The applicant was 18 years old when he enlisted and he successfully completed basic combat training and advanced individual training.  In addition, he had served over 6 years in the Army prior to his discharge.    

2.  Marital problems are not normally grounds for upgrading a discharge.  There is no evidence the applicant sought assistance from his chain of command or chaplain on a way to resolve his problems within established Army procedures.  

3.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, there is no basis for granting the applicant's request.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___XX_____  ___XX_____  ____XX____  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.



      _______ XXXX_   _______   ___
               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)                                         AR20080012713





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ABCMR Record of Proceedings (cont)                                         AR20080012713



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