IN THE CASE OF:	  

		BOARD DATE:	       28 MAY 2009

		DOCKET NUMBER:  AR20090002898 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge issued on 22 June 1977. 

2.  The applicant states that he was young and encountered a family hardship at the time. 

3.  The applicant provides an undated self-authored statement and a copy of his DD Form 214 (Report of Separation from Active Duty), dated 22 June 1977, 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, 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 record shows he was born on 9 June 1958 and enlisted in the Regular Army at the age of 17 for a period of 3 years on 28 May 1976.  He was subsequently assigned to Fort Sill, OK, for completion of basic combat and advanced individual training under the one station unit training (OSUT) program.

3.  On 3 February 1977, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go at the time prescribed to his appointed place of duty on 28 January 1977.  His punishment consisted of a forfeiture of $50.00 pay and 14 days of extra duty.

4.  On 22 April 1977, the applicant departed his unit in an absent without leave (AWOL) status and was subsequently dropped from the Army rolls on 20 May 1977.  He surrendered to military authorities in Philadelphia, PA, on 31 May 1977 and he was reassigned to Fort Dix, NJ.

5.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 22 June 1977 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial.  He completed 11 months and 16 days of creditable active service and he had 39 days of lost time.

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

7.  In his undated self-authored letter, the applicant states that he enlisted in the Army at a young age to help his family financially and that he did not do anything dishonorable.  He adds that he even turned himself in to a recruiter who understood his situation and told him what he needed to do to get out of the Army.  When he arrived at Fort Dix, he was told to sign several papers without fully understanding the impact the discharge would have on him.  He has led an honorable life since his discharge and appeals to this Board to upgrade his character of service.

8.  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.

9.  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, 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 UOTHC discharge is normally considered appropriate.

10.  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.

11.  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 that his UOTHC discharge should be upgraded because he was young and encountered family problems.

2.  The applicant’s record is void of the facts and facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 22 June 1977 under the provisions of chapter 10 of Army Regulation 635-200 for the convenience of the government, in lieu of a court-martial. 

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200 required the applicant to have voluntarily, willingly, and in writing, request discharge from the Army in lieu of trial by court-martial.  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.  The applicant has provided no information that would indicate the contrary.  Further, the applicant’s discharge accurately reflects his overall record of service.   

4.  The applicant's records show he was 17 years of age at the time of his enlistment and nearly 18 years of age at the time of his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service obligation. 

5.  Additionally, there is no evidence that the applicant encountered family and/or financial hardships at the time or that he addressed such hardships with his chain of command and/or the support channels available to him. 

6.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant the requested relief.

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.




      _______ _   XXX_______   ___
               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)                                         AR20090002898



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ABCMR Record of Proceedings (cont)                                         AR20090002898



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