IN THE CASE OF:	

		BOARD DATE:	       14 JULY 2009

		DOCKET NUMBER:  AR20080017135 


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 under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states, in effect, that he is requesting this change so he can get a better job.  He also states, in effect, that he was foolish at a young age and is no longer so at his older age.  He further states that his wife was pregnant and he had alcohol issues.  He thought he could do what he wanted, but he realized he could not.  He does not think this should stay with him for the rest of his life.  He needs to be able to get a good job.  He further states that he was told after so many months his discharge would be upgraded to honorable and recruiters were calling him and asking for him to reenlist. 

3.  The applicant provides no additional documentation 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 military records show that he enlisted in the Army Delayed Entry Program on 9 May 1980.  He enlisted in the Regular Army (RA), in pay grade E-1, on 24 June 1980, for 3 years.  On the date of his enlistment in the RA, the applicant was 17 years and 9 months of age.  He completed basic and advanced individual training and was awarded military occupational specialty 12C, Bridge Specialist.  

3.  On 5 August 1980, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on 26 July 1980.  His punishment included a forfeiture of $100.00 pay per month for one month ($50.00 of which was suspended until 22 September 1980) and 7 days restriction and extra duty.

4.  The applicant was promoted to pay grade E-3 on 24 June 1981.

5.  On 21 January 1982, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his unit from 24 December to 26 December 1981.  His punishment included a reduction to pay grade E-2 (suspended for 60 day), a forfeiture of $75.00 pay, and 14 days extra duty.  He did not appeal the punishment.

6.  On 1 March 1982, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his unit from 4 February to 9 February 1982.  His punishment included a reduction to pay grade E-2, a forfeiture of $250.00 pay per month for two months, and 30 days extra duty.  He elected to appeal the punishment.

7.  On 11 March 1982, the applicant stated in his appeal of the Article 15 that the full punishment of that Article 15 would be a hardship on him and his wife.  His wife was 7 months pregnant.  If he received full punishment of $250.00 pay taken from his paycheck for two months and "14 days" [sic] extra duty, and a reduction to pay grade E-2, his wife would have to go home to Illinois and have the baby there.  It was their first child and he would like to have his wife have the baby at a military hospital close to where she was staying.  It was difficult for them to live on the paycheck he was now receiving and it would be financially impossible if money was taken out of his paycheck.  They would not have enough money to pay rent and buy food.

8.  On 16 March 1982, the applicant's company commander recommended disapproval of the applicant's appeal.  The company commander stated that the applicant had a continuing problem with his attitude, bearing, and work attendance and that was not the first transgression.  Despite repeated counseling, the applicant had shown no improvement or even an attempt.  As evidence of his lack of responsibility, he was absent twice between the first reading and the second reading of the Article 15 and twice again since the second reading.  The company commander also stated that he fully understood the punishment would result in extreme hardship for the applicant's wife; however, virtually all other avenues to rehabilitation had been attempted to no avail.  It was his belief that any further leniency to the applicant would be counterproductive.

9.  The applicant was reduced to pay grade E-2 on 1 March 1982.

10.  The applicant's appeal was denied on 13 April 1982.  In a memorandum, dated 13 April 1982, the brigade commander advised the applicant that if it were the first time he was absent without leave (AWOL), his commanders and he might have suspended part of the punishment, but it was the second time.  

11.  The applicant was again reported AWOL on 2 May 1982 and returned to military control on 21 May 1982.  He was again reported AWOL on 22 May 1982 and returned to military control on 28 May 1982.

12.  On 15 July 1982, the applicant's company commander advised the applicant that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for reasons of misconduct.

13.  On 15 July 1982, the applicant acknowledged receipt of the commander's notification.  After consulting with counsel, the applicant waived his rights and elected not to submit a statement in his own behalf.  He also acknowledged the effects of issuance of a discharge under other than honorable conditions.  He further acknowledged that he could make application to the Army Discharge Review Board (ADRB) or the ABCMR for upgrading; however, that act of consideration by either board did not imply that his discharge would be upgraded.

14.  On 15 July 1982, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200 for reasons of misconduct.  The company commander stated that the discharge was recommended because of the applicant's habits and traits of character manifested by repeated commission of offenses.

15.  On 15 July 1982, the applicant's battalion commander recommended approval of the company commander's recommendation for the separation of the applicant.  The battalion commander concurred with the company commander's recommendation regarding waiver of rehabilitative transfer requirements.

16.  On 22 July 1982, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200 for reasons of misconduct, with a waiver of rehabilitation and counseling requirements.  The company commander stated that the applicant's complete lack of interest in becoming a satisfactory Soldier and his conduct indicated that he did not and never would serve any useful purpose while in the service.  The applicant's retention for the purpose of counseling would have a negative impact on that unit and any transfer and continued retention in another unit for the purpose of rehabilitation would only result in failure and an adverse affect on that unit's mission.  

17.  On 26 July 1982, the applicant's brigade commander recommended approval of the company commander's recommendation for the separation of the applicant.  The brigade commander concurred with the company commander's recommendation regarding waiver of rehabilitative transfer requirements.

18.  On 30 July 1982, the Staff Judge Advocate found the case legally sufficient for such action as was deemed appropriate.

19.  On 30 July 1982, the separation authority approved the recommendation for the applicant's discharge and directed that he be issued an under other than honorable conditions discharge and that he be reduced to pay grade E-1.

20.  The applicant was separated from active duty, in pay grade E-1, on 18 August 1982, under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct-frequent incidents of a discreditable nature with civil or military authorities with an under other than honorable conditions discharge.  He was credited with completing 2 years and 25 days of net active service.  He also had lost time from 4 February through 8 February 1982, 2 May through 20 May 1982, and from 22 May through 27 May 1982, due to AWOL.

21.  There is no evidence the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

22.  Army Regulation 635-200 (Personnel Separations - Enlisted Separation), in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33b of the regulation established the policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or AWOL.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally considered appropriate.

23.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

24.  Army Regulation 635-200, paragraph 3-7b, provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

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

2.  The applicant's contention that he was foolish and young has been noted. The applicant was 17 years and 9 months of age when he enlisted in the RA.   He was 18 and 19 years old, respectively, when he went AWOL.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service. His records show he failed to conduct himself in a suitable military manner and had shown little evidence of attempting to comply with rules and regulations; therefore, it appears the applicant made no attempt to adapt to military life.

3.  The applicant has provided no evidence or argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of his discharge.  The evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable discharge.  
4.  Additionally, the applicant is advised that the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge to honorable. 

5.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.  

6.  There is no evidence that the applicant applied to the ADRB for an upgrade of his discharge within its 15-year statute of limitations.

7.  In order to justify correction of a military record, the applicant must show, 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.

8.  In view of the foregoing, there is no basis for granting the applicant's request.

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.




      _______ _   _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.

ABCMR Record of Proceedings (cont)                                         AR20080017135



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ABCMR Record of Proceedings (cont)                                         AR20080017135



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