IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090003733 


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 discharge be upgraded.

2.  The applicant states, in effect, his discharge was unjust.  He argues that he was young and was mistreated by his commander.  He concludes that he is in need of medical care.

3.  The applicant provides copies of his DD Form 734A (Under Other Than Honorable Conditions Discharge Certificate); DD Form 358 (Charge Sheet); and Headquarters, 1st Armored Division, Court-Martial Convening Order Number 148, dated 27 March 1979 in support of his 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 31 July 1958.  He enlisted in the Regular Army (RA) on 8 February 1977 at the age of 18 years and 6 months.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 63C (Track Vehicle Mechanic).

3.  On 9 February 1978, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on 1 February 1978.

4.  On 24 July 1978, the applicant accepted NJP under Article 15, UCMJ, for willfully destroying by smashing a window of a value of about $10.00, military property of the United States on 17 July 1978.

5.  On 9 August 1978, the applicant accepted NJP under Article 15, UCMJ, for sleeping on his post while being posted as a sentinel on 3 August 1978.

6.  On 19 October 1978, the applicant accepted NJP under Article 15, UCMJ, for missing company formation on six occasions.

7.  On 26 October 1978, a DA Form 4126-R (Bar to Reenlistment Certificate) on the applicant was approved.  The reasons cited by the company commander for initiating the bar to reenlistment action included the applicant's numerous Article 15s, that the applicant was apathetic toward his duties and the Army in general, and that he had been counseled on numerous occasions by his company level chain of command as well as the battalion commander.

8.  The applicant departed absent without leave (AWOL) on 14 December 1978 and returned to military control on 18 December 1978.  He departed AWOL again on 18 December 1978 and was apprehended by military authorities on 19 March 1979.

9.  On 20 March 1979, court-martial charges were preferred against the applicant for being AWOL from 14 December 1978 to 18 December 1978 and again from 18 December 1978 to 19 March 1979.

10.  A DA Form 268 (Report for Suspension of Favorable Personnel Action), dated 21 March 1979, shows the applicant was placed in pre-trial confinement.

11.  The applicant's separation packet is not available.  A second DA Form 268, dated 10 May 1979, shows he was being discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, discharge for the good of the service - in lieu of court-martial.

12.  On 15 May 1979, the applicant was discharged with a characterization of service of under other than honorable conditions, in pay grade E-1, after completing 2 years and 3 days of creditable active service with 95 days of lost time.  His DD Form 214 indicated the authority for his separation as Army Regulation 635-200, chapter 10.

13.  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 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 may be submitted at any time after charges have been preferred and must include the individual’s admission of guilt.  A discharge under other than honorable conditions is normally considered appropriate.

14.  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.

15.  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 ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.

2.  Age is not a sufficiently mitigating factor.  Records show that the applicant was 18 years, 6 months, and 9 days old when he enlisted in the RA and proceeded to successfully complete basic combat and advanced individual training.  The applicant was 19 years, 6 months, and 2 days old at the time of his first act of indiscipline on 1 February 1978.  There is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their term of military service.

3.  The applicant's record shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Separations under the provisions of chapter 10, Army Regulation 635-200 are voluntary separations, in which the applicant must admit guilt to the charges.

4.  In the absence of evidence to the contrary, it is presumed that the applicant's voluntary request for separation under the provisions of Army Regulation        635-200, chapter 10, by reason of for the good for the service – in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  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)                                         AR20090003733



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ABCMR Record of Proceedings (cont)                                         AR20090003733



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