IN THE CASE OF:	

		BOARD DATE:	      21 JULY 2009

		DOCKET NUMBER:  AR20090004043 


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 under other than honorable conditions discharge be upgraded to an honorable discharge. 

2.  The applicant states that he was young and a good Soldier.  He was cheated on by a German national who had convinced him to marry her to help support her child.  This person was allowed to work at the station he served at.  He could not get his command to restrict her movement and he could not get transferred to another station.   

3.  In support of his application, the applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), his DD Form 215 (Correction to DD Form 214), a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States), and his letter to a Veteran's Service Officer.

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 he enlisted in the Army Delayed Entry Program on 14 February 1977.  At age 17, he enlisted in the Regular Army (RA), in pay grade E-1, on 8 March 1977, for 3 years.  He completed basic and advanced individual training and was awarded military occupational specialty 12B (Combat Engineer).  He was advanced to pay grade E-2 on 8 September 1977 and he served in Germany from 28 June 1977 to 3 March 1980.

3.  On 3 January 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for leaving his assigned guard post before being properly relieved on 4 December 1977.  His punishment included a forfeiture of $50.00 pay per month for 1 month and 7 days of extra duty.  He did not appeal the punishment.

4.  The applicant was promoted to pay grade E-3 on 1 May 1978.

5.  On 2 May 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for absenting himself from his place of duty from 16 April to 17 April 1978.  His punishment included a forfeiture of $75.00 pay per month for 1 month ($50.00 suspended for 45 days) and 14 days of extra duty of which 7 days were suspended for a period of 45 days.  He did not appeal the punishment.

6.  On 18 May 1978, the suspension of the punishment of the forfeiture and the extra duty were vacated.  The unexecuted portions of the punishment were duly executed.

7.  On 18 December 1978, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for willfully disobeying a lawful order from his superior noncommissioned officer (NCO) on 11 November 1978.  His punishment included a forfeiture of $100.00 pay per month for 1 month (suspended for 60 days) and 7 days of extra duty.  He did not appeal the punishment.

8.  On 7 June 1979, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty at the prescribed time on 23 May 1979.  His punishment included reduction to pay grade E-2 (suspended for 60 days), a forfeiture of $100.00 pay per month 1 month, and 14 days of extra duty.  He did not appeal the punishment.
9.  On 2 July 1979, the suspended portion of the punishment (reduction to pay grade E-2) was vacated.  The unexecuted portion of the punishment was duly executed.

10.  On 19 July 1979, the applicant accepted non-judicial punishment under the provisions of Article 15 of the UCMJ for failing to go to his appointed place of duty on 5 July 1979 and willfully disobeying a lawful order from his superior NCO on 10 July 1979.  His punishment included a reduction to pay grade E-1 and correctional custody for a period of 30 days.  The applicant was reduced to pay grade E-1 on 19 July 1979.

11.  All of the documents pertaining to the facts and circumstances surrounding the applicant's discharge process are not included in the available records.  However, his records contained a copy of his DD Form 214 which shows that he was discharged, on 31 August 1979, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separation), paragraph 14-33B with an Under Other Than Honorable Conditions Discharge Certificate.  He was credited with completing 2 years, 5 months, and 23 days of net active service and 1 day of lost time.

12.  In a letter, dated 31 August 1979, the applicant was advised the reason and narrative description for his separation from active duty was misconduct, frequent incidents of a discreditable nature with civil or military authorities.

13.  On 21 March 1983, the applicant was issued a DD Form 215 changing his reenlistment code in item 10 of his DD Form 214 to “RE-3, RE-3B, and RE-3C.” The DD Form 215 also added to item 27 (Remarks) of his DD Form 214 “Chapter 4, Army Regulation 600-200 (Personnel-General) and Table 4-1, Army Regulation 601-210 (RA and Army Reserve Enlistment Program) apply, Army Regulation 600-37 (Unfavorable Information) complied with." 

14.  Army Regulation 600-200, Chapter 4, governs the procedures for denying reenlistment under the Qualitative Management Program to enlisted personnel performing unsatisfactorily.  Army Regulation 601-210 governs the eligibility criteria, policies, and procedures for enlistment and processing of persons into the RA and the US Army Reserve.  Army Regulation 600-37 governs the policies and procedures regarding unfavorable information considered for inclusion in official personnel files.

15.  The available evidence indicates the applicant applied to the Army Discharge Review Board (ADRB) on 9 February 2009, outside of the ADRB's 
15-year statute of limitation.

16.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Paragraph 14-33b of the regulation established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absent without leave.  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 considered appropriate.

17.  Army Regulation 635-200, paragraph 3-7a, provided that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel, or was otherwise so meritorious that any other characterization would be clearly inappropriate.  

18.  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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

2.  The applicant's contentions that he was young and a good Soldier were considered.  The applicant was age 17 when he enlisted in the RA, age 18 or older at the time he received several nonjudicial punishments for misconduct and age 19 when he was finally discharged under other than honorable conditions.  There is no evidence available that indicates the applicant was any less mature than other Soldiers of the same age who served successfully and completed their military obligation.  The applicant failed to conduct himself in a suitable manner for military personnel, and there is no evidence that suggests he attempted to comply with the established rules and regulations.  

3.  Not all the facts and circumstances pertaining to the applicant's discharge are available for review.  However, the available evidence contains a properly constituted DD Form 214 which was authenticated by the applicant.  This document identifies the reason and authority for his discharge and the characterization of his service.  The available evidence shows the applicant’s misconduct diminished the quality of his service below that meriting a fully honorable or general discharge.  

4.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would have jeopardized his rights.

5.  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 has failed to submit evidence that would satisfy this requirement.

6.  In view of the foregoing, there is no basis for granting the applicant's request.

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)                                         AR20090004043



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ABCMR Record of Proceedings (cont)                                         AR20090004043



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