IN THE CASE OF:	  

		BOARD DATE:	  10 March 2009

		DOCKET NUMBER:  AR20090001552 


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 be upgraded.

2.  The applicant states, in effect, that he served his country for 3 years and he would like to have an honorable discharge on his record.  He further states that he was young, that he didn't have a good lawyer, and that he just wanted to go home from Germany.

3.  The applicant provides no documentation in support of his request.

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, and 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 he enlisted in the Regular Army on 7 December 1977 in the pay grade of E-1.  On the date of his enlistment he was 19 years, 10 months, and 21 days of age; his date of birth is 16 January 
1958.  He completed basic training at Fort Jackson, South Carolina, and advanced individual training at Fort Eustis, Virginia.  Upon completion of his training, he was awarded the military occupational specialty 68G, Aircraft Structure Repairer. The applicant was advanced to pay grade E-2 on 7 June 
1978 and to pay grade E-3 on 1 October 1978.

3.  On 23 May 1979, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for throwing his assigned M-60 machine gun and an M-16 rifle to the ground from the back of a 2 1/2 ton truck, causing damage to military property of the United States.  His punishment consisted of forfeiture of $75.00 per month for 1 month and extra duty and restriction to the company area for a period of 14 days. 

4.  The applicant was advanced to the pay grade of E-4 on 1 October 1979.

5.  DA Form 268 (Report for Suspension of Favorable Personnel Actions) obtained from the applicant’s records, dated 7 October 1980, shows that he was pending investigation, while in Germany, by the commander for possession of hashish.  On the same date, documentation shows that the applicant was pending chapter 10 action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel).

6.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, the applicant's records contain a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) which shows that on 29 December 1980 he was discharged in the pay grade of E-1 under the provisions of Army Regulation 
635-200, chapter 10, administrative discharge in lieu of trial by court-martial.  He was furnished a discharge characterized as under other than honorable conditions (UOTHC).  At the time of his discharge, the applicant had 3 years and 23 days of active service.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A UOTHC discharge was normally considered appropriate.

8.  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.

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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge to honorable.  He has not shown error, injustice, or inequity for the relief he now requests.  He was properly discharged and he has not shown otherwise.

2.  The applicant’s contention that his youth impacted his ability to serve successfully is without merit.  The applicant was 19 years, 10 months, and 21 days of age when he enlisted in the Army.  There is no evidence that the applicant was any less mature than other Soldiers of the same or younger age who served successfully and completed their terms of service.

3.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board, or it must otherwise 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.



      _________________________
                 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)                                         AR20090001552



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ABCMR Record of Proceedings (cont)                                         AR20090001552



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