IN THE CASE OF:	  

		BOARD DATE:	      6 JULY 2009

		DOCKET NUMBER:  AR20090003370 


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 discharge be upgraded.

2.  The applicant states, in effect, he was only 17 years old at the time of entry.  He argues that if the conditions were different and he was more mature he would have stayed in the service.  He adds that he regrets his actions and can only ask for forgiveness.  

3.  The applicant provides no additional documentary evidence in support of this application.

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 was born on 23 February 1960.  He enlisted in the Regular Army on 8 March 1977 (with parental consent) and upon completion of initial entry training was awarded military occupational specialty 17C (Field Artillery Target Acquisition Specialist).

3.  On 7 February 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being disorderly by setting off an unauthorized lit fire cracker which caused a disturbance in a classroom, for disobeying a lawful order from a noncommissioned officer, for being disrespectful towards a noncommissioned officer, and for participating in a breach of peace by wrongfully engaging in a fistfight.

4.  On 27 March 1978, the applicant accepted NJP under Article 15, (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 20 March 1978.

5.  The applicant departed absent without leave (AWOL) on 31 March 1978 and on 28 April 1978; he was dropped from the unit rolls.

6.  On 17 August 1981, the applicant was discharged in absentia under the provisions of Army Regulation 635-200 (Personnel Separations) chapter 14 for misconduct-desertion.  His service was characterized as under other than honorable conditions.  He completed 1 year and 23 days of active service with 1227 days of lost time.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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, 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request to have his discharge upgraded has been carefully reviewed and found to be without merit.

2.  Age is not a sufficiently mitigating factor.  The applicant completed basic combat and advanced individual training and there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who completed their term of military service.

3.  The applicant's record of indiscipline includes punishments under the UCMJ and 1227 days of lost time due to AWOL and desertion.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to either a general or an honorable discharge.

4.  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.




      _______ _   __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)                                         AR20090003370



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ABCMR Record of Proceedings (cont)                                         AR20090003370



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