IN THE CASE OF:	  

		BOARD DATE:	       10 March 2009

		DOCKET NUMBER:  AR20080018893 


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 under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he is not trying to make excuses but believes that his under other than honorable discharge should be overturned.  He was only 
17 years of age and straight out of high school when he first joined the U.S. Army.  He had never been outside of Shreveport, Louisiana.   He contends that when one is young like he was, there is a tendency to be a little hot headed, head-strong, and to think that you know everything.  Now that he is older, he realizes that the choices he made were not wise.  Over the years he has become a good husband, father, and an outstanding and productive citizen.  Due to the stress that he has put on his heart, he has a heart valve that is leaking.  He is happy that the Board will consider his request to over-turn the discharge decision.

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.  On 31 January 1977, the applicant, who was 18 years, 3 months, and 29 days of age at the time, enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 7 July 1977, the applicant was assigned for duty as a rifleman with the 2nd Battalion, 32nd Infantry Regiment, located at Fort Ord, California.

4.  On 16 November 1979, the applicant reenlisted in the Regular Army for 
3 years.  He was subsequently assigned for training in carpentry/masonry at Fort Carson, Colorado.

5.  On 5 December 1981, the applicant was promoted to sergeant (SGT), pay 
grade E-5.

6.  On 20 September 1982, the applicant reenlisted in the Regular Army for 
3 years.  On 28 January 1983, he was assigned for duty as a carpentry/masonry specialist with the 44th Engineer Battalion, located in the Republic of Korea.

7.  On 17 February 1984, the applicant returned to the United States and was subsequently assigned for duty at Fort Bragg, North Carolina.

8.  The applicant was absent without leave (AWOL) for 2 days from on or about 24 to 25 September 1984.  He was also AWOL during the period from on or about 1 to 13 November 1984 and from on or about 22 to 26 November 1984. 

9.  In an undated DA Form 2496 (Disposition Form), addressed to the battalion commander, the applicant's company commander requested a special court-martial with a bad conduct discharge for the applicant's violation of Article 86, Uniform Code of Military Justice (UCMJ) for AWOL and for failure to go to perform extra duty; and for violation of Article 90, UCMJ for "willful disobedience."

10.  The discharge packet is not contained in the applicant's military records.  However, his records contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that shows he was administratively discharged on 10 January 1985, under the provisions of Army Regulation      635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of court-martial.  His service was characterized as under other than honorable conditions.  He had completed 7 years, 10 months, and     20 days of creditable active duty and had 20 days of lost time due to AWOL.  He was also 28 years, 3 months, and 9 days of age at the time of his separation.

11.  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.

12.  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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

13.   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.

14.  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 contends, in effect, that his discharge should be upgraded on the basis of his good post-service conduct.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of service rendered is commensurate with his overall record.

3.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant had satisfactorily completed training, served an overseas tour, attained the rank of sergeant, and had reenlisted two times before being discharged for the good of the service – in lieu of court-martial.  His past satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

4.  The applicant’s claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5. 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 the aforementioned requirement.

6.  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.



      _________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)                                         AR20080018893



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ABCMR Record of Proceedings (cont)                                         AR20080018893



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