IN THE CASE OF:	  

		BOARD DATE: 	         30 June 2009

		DOCKET NUMBER:  AR20090003567 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states that he was 120 days from his expiration of term of service (ETS) when he was asked if he wanted to get out early.  He stated "yes," and was discharged.  He further states that he believes he should have received an honorable discharge and not an under other than honorable conditions discharge.  He finally states he was young and did not read the discharge type, and he now he has amyotrophic lateral sclerosis (ALS) and is seeking care and assistance from the Department of Veterans Affairs (VA).

3.  The applicant provides no additional documents 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 19 May 1959.  After having had prior service, he enlisted in the Regular Army (RA) on 22 March 1978.  

3.  The applicant’s military record reveals a disciplinary history that includes his acceptance of the following nonjudicial punishment (NJP):

   a.  on 15 May 1978 for failing to go at the prescribed time to his appointed place of duty on or about 3 May 1978.  His punishment included a forfeiture of $75.00 per month for 2 months (suspended for 90 days) and extra duty for 14 days;
   
   b.  on 17 September 1978 for failing to go to at the prescribed time to his appointed place of duty on or about 27 July 1978; and for wrongfully communicating a threat to a noncommissioned officer on or about 9 August 1978, by saying to him "I'm going to kill you."  His punishment included a reduction to the rank of private (PV1)/E-1 (suspended for 90 days), a forfeiture of $100.00 pay per month for 2 months (suspended for 90 days), extra duty for 45 days, and restriction for 30 days.  On 10 October 1978, the suspensions were vacated; and
   
   c.  on 28 March 1979 for absenting himself from his unit on or about 6 March 1979.  His punishment included 7 days confinement to the correctional custody facility (CCF) (suspended for 60 days).
   
4.  The applicant's military record also shows that on 19 October 1978, he was tried by a Summary Court-Martial for being absent without leave (AWOL) from on or about 2 October 1978 to on or about 3 October 1978.  He pled and was found guilty of the charge.  Headquarters, 3rd Brigade, 101st Airborne Division, Fort Campbell, KY Summary Court-Martial Order Number 46, dated 19 October 1978, shows the applicant was sentenced to confinement at hard labor for 15 days and a forfeiture of $50.00 pay for one month.  On the same day, the Court-Martial Convening Authority approved and ordered the sentence executed.

5.  The specific facts and circumstances leading to the applicant’s discharge processing are not contained in the available records.  However, the record contains a properly constituted DD Form 214 (Report of Separation from Active Duty) that shows the applicant was discharged on 17 July 1979, under the 

provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14-33b, by reason of misconduct – pattern of misconduct, with an under other than honorable conditions discharge.  The DD Form 214 also shows the applicant was discharged in the rank of PV1 and that he completed a total of 1 year, 6 months, and 27 days of total creditable active service with 13 days of time lost.

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

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed 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 would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was young, did not read his discharge, and now has ALS were carefully considered.  
2.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant‘s discharge.

3.  The evidence of record shows that the applicant received three NJPs and he was tried and convicted by a summary court-martial.

4.  The applicant's record shows that he was 19 years of age at the time of his first disciplinary incident.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

5.  Based on this record of indiscipline, the applicant's 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 or general discharge.

6.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of making the applicant eligible for veterans or medical benefits.  Every case is decided based upon its own merits when an applicant requests a change in his or her discharge.

7.  This Board operates under the standard of presumption of regularity in governmental affairs.  This standard states, in effect, that in the absence of evidence to the contrary, the Board must presume that all actions taken by the military were proper.  There is no evidence of record and the applicant has not provided any evidence that overcomes this presumption.  Therefore, there is no basis for granting the applicant's 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.



      _______ _   _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)                                         AR20090003567



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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