IN THE CASE OF:
BOARD DATE: 27 January 2009
DOCKET NUMBER: AR20080017234
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, an upgrade of his discharge.
2. The applicant states, in effect, that he was young and did not appreciate life, but that he served his country and should be able to get the benefits he deserves.
3. The applicant provides a completed VA Form 21-4138 (Statement in Support of Claim) in support of this 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 enlisted in the Regular Army on 8 February 1977 at the age of 17 with parental consent. He completed basic combat and advanced individual training and was awarded the military occupational specialty of infantryman. The highest rank he attained while serving on active duty was private/pay grade E-2.
3. The applicant's records do not show any significant acts of achievement or valor during his military service.
4. The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on seven occasions between 4 November 1977 and 7 November 1979 for being absent without leave on 11 March 1978, from 14 to 16 April 1979, from 7 to 10 June 1979, on 9 July 1979, and on 8 August 1979; for larceny of $41.00 on 10 December 1977; and for wrongfully possessing marijuana on 3 November 1977.
5. The applicant was convicted by a special court-martial on 7 July 1978 for stealing a radio 8-track receiver, a turntable, and two speakers with a value of about $120.00.
6. On 13 September 1979, the applicant was charged with being absent without leave on 4 and 5 September 1979 and 9 September through 6 November 1979.
7. The applicant's discharge packet is not contained in his records. However, on 14 December 1979, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations), Chapter 10. The DD Form 214 the applicant was issued confirms he completed a total of 2 years, 7 months, and 29 days of creditable active military service with 89 days of lost time due to being absent without leave and confinement.
8. 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.
9. Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), 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.
10. 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 accepted nonjudicial punishment on seven occasions and was convicted by a special court-martial. He had a total of 89 days of lost time. 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.
2. While the applicant's discharge packet is not contained in his record, he was discharged under the provisions of Army Regulation 635-200, chapter 10. In order to be discharged under chapter 10, the applicant would have had to admit guilt and request discharge in lieu of trial by court-martial.
3. Records show that the applicant was 18 to 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.
4. In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.
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) AR20080017234
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ABCMR Record of Proceedings (cont) AR20080017234
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