IN THE CASE OF:	

		BOARD DATE:	  7 April 2009

		DOCKET NUMBER:  AR20090001964 


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, his under other than honorable conditions discharge be upgraded to a general, under honorable conditions or an honorable discharge.

2.  The applicant states, in effect, that he was young at the time of his discharge and that he was defending himself during a physical altercation with another Soldier.  During the altercation, he used a buck knife to stop the other Soldier from attacking him.   He further states, in effect, that he was given an opportunity to attend the Retraining Brigade or request an under other than honorable conditions discharge [in lieu of court-martial] without any counsel or personal representation.  At the time of his discharge he states he was under extreme duress and frightened by military legal experts. 

3.  The applicant provides, in support of his application, copies of his DD Form 214 (Certificate of Release or Discharge from Active Duty) with a separation date of 3 March 1982; a DD Form 215 (Correction to DD Form 214), dated 28 January 1983; and a Department of Veterans Affairs Form 21-4138 (Statement in Support of Claim), dated 24 December 2008.

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 military records show that on 14 August 1980, at the age of 18, he enlisted in the Regular Army for a period of 4 years.  He successfully completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 13F (Fire Support Specialist).

3.  The applicant was assigned to Headquarters and Headquarters Battery, 1st Battalion, 11th Field Artillery at Fort Lewis, Washington on 9 December 1980. The highest rank/grade the applicant held during his tenure of service was private (PV2)/pay grade E-2.

4.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 15 June 1981 for wrongful appropriation of government property.  His punishment was 14 days extra duty and forfeiture of $130.00, suspended for 60 days.  On 1 September 1981, he accepted a second Article 15 for being absent without leave (AWOL) from his unit from on or about 0730 hours on 22 July 1981 to on or about 2330 hours on 25 July 1981 and for failing to go at the time prescribed to his appointed place of duty on or about
28 July 1981.  His punishment was 7 days extra duty.

5.  The applicant's separation processing packet and the specific facts and circumstances pertaining to his discharge are not available for review.  However, his records contain a duly constituted DD Form 214 that shows that on 3 March 1982 the applicant was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, by reason of administrative discharge – conduct triable by court-martial.  He had completed 1 year, 6 months, and 17 days of creditable active service and had 3 days of time lost time.  He was 19 years old at that time.

6.  There is no record that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the administrative 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 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.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.  

8.  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.

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.

10.  Army Regulation 15-185 (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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was young, that he was defending himself, and that he did not receive adequate counseling by military legal personnel at the time of his separation.  The record shows the applicant was 18 years of age at the time of his enlistment and 19 years old at the time of his separation.  This is 

no younger than other Soldiers who honorably complete their enlistments.  At the time of his discharge, the applicant had completed 1 year, 6 months, and 17 days of net active Federal service.  

2.  Although the applicant's separation packet was not available for the Board's review, in order for him to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have been afforded the opportunity to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

3.  If the applicant believed he was simply defending himself, he should have presented his evidence at a court-martial.

4.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  The type of discharge and the reason for separation are appropriate considering the known facts of the case.  Therefore, there is no basis for warranting an upgrade of the applicant's under other than honorable conditions discharge to either a general, under honorable conditions or an honorable discharge.

5.  In order to justify correction of a military record the applicant must, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy that requirement.

6.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's other than honorable discharge characterization of service.

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)                                         AR20090001964



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ABCMR Record of Proceedings (cont)                                         AR20090001964



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