IN THE CASE OF:	  

		BOARD DATE:	      13 November 2008

		DOCKET NUMBER:  AR20080014706 


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 he was young and immature at the time of his military service.

3.  The applicant provides no additional documentary evidence in support of his 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 show he entered in the Regular Army on 26 August 1976 at the age of 19.  He completed basic combat and advanced individual training (AIT).  Upon completion of AIT, he was awarded the military occupational specialty 63H (Automotive Repairman).  The highest rank he attained while serving on active duty was private first class/pay grade E-3. 

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

4.  Records show that the complete facts and circumstances of the applicant's discharge are not available for review with this case.  There are however, sufficient records available to make a fair and impartial decision in this case.

5.  Records show that the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions: on 15 June 1977, for failing to report to appointed place of duty on or about 10 May, 11 May, 12 May, 1 June 1977, and failing to stay awake at place of duty on 
3 June 1977 with a punishment of forfeiture of $87.00 per month for one month and seven days of extra duty; on 11 August 1977, for failing to obey a lawful general regulation by failing to maintain the required minimum liability insurance on privately owned vehicle with a punishment of forfeiture of $87.00 for one month ($50.00 suspended) and 14 days of extra duty; on 22 August 1977, for disrespectful language toward a superior noncommissioned officer on or about 21 July 1977 with a punishment of reduction in grade to private/pay grade E-1, forfeiture of $87.00 per month for one month, and extra duty for 14 days; and on 14 June 1978, for wrongfully possessing some quantity more or less of marijuana on or about 18 May 1978 with a punishment of 14 days of extra duty, reduction to private/pay grade E-2 (suspended 90 days), and forfeiture of $50.00 pay per month for one month. 

6.  On 19 December 1978, the applicant was convicted by a special court-martial for preventing apprehension of an individual who committed an offense punishable by the UCMJ, aiding that individual with escape, concealing evidence of the offense, and unlawfully receiving property that applicant knew was stolen on or about 14 April 1978 with a punishment of confinement at hard labor for three months, forfeiture of $279.00 pay per month for three months, reduced in grade to the pay grade of private E-1, and to be discharged from the service with a bad conduct discharge.

7.  Special Court-Martial Order Number 90, dated 14 November 1979 states that the charge specified in Special Court-Martial Order Number 125 was dismissed and that the applicant’s application for discharge under the provisions of 
chapter 10 of Army Regulation 635-200 (Personnel Separations) was approved on 9 November 1979.

8.  On 15 November 1979, the applicant was discharged accordingly with an under other than honorable conditions characterization of service.  The DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) issued confirms he completed a total of 3 years and 1 day of creditable active military service.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, which 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 under other than honorable conditions discharge was normally considered appropriate.

11.  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.  Whenever, there is doubt, it is to be resolved in favor of the individual.

12.  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 discharge should be upgraded was carefully considered and determined to be without merit.

2.  Records show that the applicant was 20 years of age at the time of his offenses.  However, 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 record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  Therefore, it is presumed in this case that the applicant voluntarily requested discharge from the Army.  Further, the applicant’s discharge accurately reflects his overall record of service.

4.  The applicant's record of indiscipline includes punishment under the provisions of Article 15, UCMJ and special court-martial.

5.  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.

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)                                         AR20080013198



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ABCMR Record of Proceedings (cont)                                         AR20080014706



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