IN THE CASE OF:	

		BOARD DATE:	23 July 2009    

		DOCKET NUMBER:  AR20090004475 


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 his under other than honorable conditions discharge be upgraded to fully honorable.

2.  The applicant states, in effect, that the events that took place at the time were due to his youth and inexperience.  He also states that the punishment was too harsh for the type of misconduct and that he did not understand the reason for his discharge.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 24 June 1979; three statements of support; and copies of various documents from his service record 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 records show he was born on 1 March 1959 and enlisted in the Regular Army for a period of 3 years on 24 June 1977 at 18 years of age.  He completed basic combat and advanced individual training and was awarded military occupational specialty 17K (Ground Surveillance Radar Crewmember).  The highest rank/grade the applicant attained during his military service was private (PV2)/E-2.

3.  The applicant’s records further show he was awarded the Sharpshooter Marksmanship Qualification Badge with Rifle Bar.

4.  On 15 September 1977, the applicant pleaded guilty at a summary court-martial to one specification of stealing a bottle of prescribed medicine and a wallet of a value of $12.15 from another Soldier against his will and by means of force and violence on or about 5 September 1977.  The court sentenced him to a forfeiture of $249.00 pay for 1 month and confinement at hard labor for 30 days.  The sentence was adjudged on 15 September 1977 and approved on 16 September 1977.

5.  The applicant's records reveal a history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 20 March 1978, for disobeying a lawful order from a superior noncommissioned officer (NCO) on or about 15 March 1978 and being disrespectful in language towards an NCO on or about 15 March 1978.  His punishment consisted of a reduction to private (PVT)/E-1, a forfeiture of $50.00 pay for 1 month, and 14 days of extra duty;

	b.  on 26 July 1978, for failing to go at the time prescribed to his appointed place of duty on two occasions on or about 13 and 17 June 1978.  His punishment consisted of a forfeiture of $74.00 pay and 5 days of extra duty;

	c.  on 18 September 1978, for disobeying a lawful order on or about 29 August 1978 and failing to go at the time prescribed to his appointed place of duty on two occasions on or about 21 and 22 August 1978.  His punishment consisted of a forfeiture of $92.00 pay, 14 days of extra duty, and 14 days of restriction;

	d.  on 6 November 1978, for failing to go at the prescribed time to his appointed place of duty on or about 26 October 1978 and disobeying a lawful order from a superior NCO on or about 26 October 1978.  His punishment consisted of a reduction to PVT/E-1, 5 days of restriction, and 5 days of extra duty; and
	e.  on 3 December 1978, for failing to go at the time prescribed to his appointed place of duty on or about 6 November 1978.  His punishment consisted of a forfeiture of $25.00 pay (suspended for 14 days).

6.  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 23 January 1979 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial.  This form also shows he completed 1 year, 6 months, and 9 days of creditable active service and he had 21 days of lost time.

7.  The applicant submitted three character reference letters and/or statements of support as follows:

	a.  in a statement, dated 28 February 2009, an individual describes the applicant as a man who finds faith in his Lord and has a need to stay active within his community;

	b.  in an undated character reference letter an individual states that he has known the applicant for over 10 years and attended the same congregation with him.  He adds that he observed him over the years and noticed that he is a kind, hard-working, and compassionate person; and

	c.  in a statement of support, dated 1 March 2009, a church elder comments on the applicant's good standing with the Lord and fellowship with the congregation.

8.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that Board’s 15-year statute of limitations.

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 discharge under other than honorable conditions 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 discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was discharged on 23 January 1979 under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial.

3.  The issuance of a discharge under the provisions of chapter 10 of Army Regulation 635-200 required the applicant to 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 18 years of age at the time of his enlistment and nearly 19 years of age at the time of the offenses that led to his discharge.  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.  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.



      ____________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)                                         AR20090004475



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090004475



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1