IN THE CASE OF:	  

		BOARD DATE:	       23 April 2009

		DOCKET NUMBER:  AR20090000380 


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 that his under other than honorable conditions discharge be upgraded.

2.  The applicant states that if he had been trained in the military occupational specialty (MOS) that he had been promised, he would not have gone absent without leave (AWOL) and been put in the place of having to face trial by court-martial.  As a sole surviving son he could not be drafted.  But he wanted to serve so he volunteered.  He was guaranteed the MOS of his choice.  He was only 
17 years old when he enlisted and he trusted adults not to lie to him.  He was told that his discharge would be upgraded 6 months after he was released from active duty.  He says that this discharge is especially disappointing to him because this is the only thing in his life that he has not completed.

3.  The applicant provides copies of an unsigned personal statement to the Board and his DD Form 214 (Report of Separation from Active Duty).
 
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 enlisted in the Regular Army, on 22 May 1974.  He was 
17 years and 8 months of age and he had completed 9th grade.  He enlisted under a station of choice option for assignment to Alaska.  Section I, item c of the DA Form 3286 (Statement for Enlistment) which the applicant signed, states:  "I will be trained in an MOS selected by the Army in Career Group 11-Infantry, 
11-Armor or 13-Artillery."  The applicant initialed each item indicating specifically that he had read and understood them.  

3.  The applicant completed training in MOS 11BI0 as a light weapons infantryman and he was stationed at Fort Wainwright, Alaska on 24 October 1974. 
  
4.  On 27 December 1974, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for willful disobedience of a superior (ranking) noncommissioned officer (NCO).  He received a second NJP, on 16 January 1975, for being disrespectful towards another superior (ranking) NCO.

5.  The applicant went AWOL on 4 July 1975 and surrendered to military authorities in San Francisco, CA on 8 August 1975.

6.  The details of the applicant’s separation process are not contained in the available records.  The applicant’s DD Form 214 shows the applicant was separated under the provisions of Army Regulation 636-200, chapter 10.  He received an under other than honorable conditions discharge, on 22 October 1975.  He had completed 1 year, 3 months and 29 days of creditable service and he had 32 days of lost time.

7.  Army Regulation 635-200 (Personnel Separations) 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, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.


8.  The Manual for Courts-Martial, in effect at the time, provided for a maximum punishment of a punitive discharge for any AWOL offense in excess of 30 days.  A punitive discharge was also authorized for both being disrespectful towards and for willful disobedience of a superior ranking NCO.

9.  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.

10.  Paragraph 3-7b of the regulation 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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) Paragraph 2-9 provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence. 

12.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15 year statute of limitation.

DISCUSSION AND CONCLUSION

1.  The applicant states that if he had been trained in the MOS he was promised he would not have gone AWOL.

2.  The evidence of record shows the applicant enlisted for a station of choice assignment to Alaska which he received.  He did not enlist for training in any specific MOS.  Indeed, his enlistment document clearly states the Army would choose his MOS. 


3.  The regulation governing the Board’s operation requires that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  

4.  In light of the applicant's brief offense filled record his service is appropriately characterized.

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 this requirement.

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)                                         AR20080018927



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ABCMR Record of Proceedings (cont)                                         AR20090000380



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