IN THE CASE OF:	  

		BOARD DATE:	       21 May 2009

		DOCKET NUMBER:  AR20090001909 


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 undesirable discharge be upgraded to honorable.

2.  The applicant states, in effect, that he was only 17 years of age at the time of his enlistment.  He got in with the wrong bunch and he was talked into going absent without leave (AWOL).  He had worked admirably for over a year and had not been in any trouble before going AWOL.  The applicant states that his uncle is a decorated veteran and his grandson wants to enter the Army.  He cannot tell him that he does not have a good discharge.  He also states that he does not have access to Department of Veterans Affairs (VA) benefits and needs to "clean up the discharge."

3.  The applicant provides, in support of his application, copies of his separation orders with associated letters and forms. 

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 28 May 1974, the applicant enlisted, with parental consent, in the Regular Army for 3 years.  He was 17 years, 1 month, and 6 days of age at the time.  He completed his initial training and was awarded military occupational specialty 76W (Petroleum Storage Specialist).

3.  On 16 October 1974, the applicant was assigned duty with the 502nd Supply and Transportation Battalion, located at Fort Hood, Texas.

4.  On 23 April 1975, the applicant was promoted to the rank of private first class, pay grade E-3.

5.  The applicant was AWOL during the periods from 19 July to 5 August 1975 (18 days); from 11 August to 4 September 1975 (25 days); and from 1 to 
23 October 1975 (23 days).

6.  On 3 November 1975, charges were preferred against the applicant under the Uniform Code of Military Justice for violation of Article 86, AWOL (three specifications), for the three periods of AWOL stated in the preceding paragraph.

7.  The discharge packet is missing from his military records.  However, his 
DD Form 214 (Report of Separation from Active Duty) shows that he was administratively discharged on 13 November 1975, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable.  He had completed 
1 year, 3 months, and 12 days of creditable active duty service and had 66 days of lost time due to AWOL.

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 limitation.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation 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.


10.  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 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.

11.  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.

12.  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 he was only 17 years of age when he enlisted and that he had more than a year of good service before getting into trouble.  He also wants access to VA benefits.  Therefore, his discharge should be upgraded.

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

3.  The applicant's record of good service is greatly diminished by the three periods of AWOL.  Furthermore, he has not provided any evidence or sufficiently mitigating argument to warrant an upgrade of his discharge.

4.  The applicant's young age of 17 years is noted.  However, his completion of training and his subsequent promotion to private first class clearly show that he was able to meet the standards and perform well as a Soldier.  

5.  A desire to obtain entitlement to VA benefits is not justification for an upgrade of an individual's discharge. 

6.  Based on the applicant's record of indiscipline, his service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an honorable discharge.

7.  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.

8.  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)                                         AR20090001909



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ABCMR Record of Proceedings (cont)                                         AR20090001909



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