IN THE CASE OF:
BOARD DATE: 22 January 2009
DOCKET NUMBER: AR20080018998
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 his undesirable discharge be upgraded to a general discharge.
2. The applicant states that he didn't commit a felony. He did not want to return to Germany because of the drug abuse all around him. He also states in effect, that he was young and immature at the time of his military service.
3. The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).
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
27 December 1971 at the age of 17 with parental consent. He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 71B (clerk). The highest rank he attained while serving on active duty was private first class (PFC)/pay grade E-3.
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 two occasions: on
5 May 1972, for being absent without authority from his unit during the period
24 April 1972 through 29 April 1972 and on 12 October 1972 for being disrespectful in language toward two superior noncommissioned officers.
5. The applicant was absent without leave during the period 11 November 1972 through 6 March 1973. He was recommended for a special court-martial for this offense.
6. The applicant's discharge packet is not contained in his records. However, on 3 May 1973, the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10. The DD Form 214 the applicant was issued confirms he completed a total of 1 year and 6 days of creditable active service with 121 days of lost time due to being absent without leave (AWOL).
7. 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.
8. 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. A discharge under other than honorable conditions is normally considered appropriate. However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.
9. 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 records show he was charged with the commission of a serious offense. 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.
2. Records show that the applicant was 17 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 records show that he had 121 days lost time due to being AWOL. 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.
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) AR20080018998
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ABCMR Record of Proceedings (cont) AR20080018998
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