IN THE CASE OF:	  

		BOARD DATE:	         23 July 2009  

		DOCKET NUMBER:  AR20090004759 


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 undesirable discharge be upgraded.

2.  The applicant states, in effect, that he was facing general court-martial charges and he feels that he was railroaded into taking the undesirable discharge all over a lousy 45 days of absence without leave (AWOL).  He states he was young and very dumb at the time of his discharge and he feels he has suffered long enough.   

3.  The applicant provides no additional documentation 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's military records show he enlisted in the Michigan Army National Guard (MIARNG), in pay grade E-1, on 6 March 1971, for 6 years.  On the date of enlistment in the MIARNG, he was 18 years and 9 months of age. 

3.  The applicant was ordered to active duty for training and entered an active duty status on 11 April 1972.  On the date of his entry on active duty, the applicant was 19 years and 10 months of age.  

4.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 which shows he was separated from active duty, on 2 October 1972, in pay grade E-1, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), for the good of the service in lieu of court-martial.  He was issued an Undesirable Discharge Certificate.  He was credited with completing 4 months and 8 days of net active service and 45 days lost time from 23 April to 6 June 1972 due to being AWOL.  He was reverted back to the MIARNG.  His signature is annotated on the DD Form 214.

5.  The applicant's records also contain a NGB Form 22 (National Guard Bureau - Report of Separation and Record of Service) that shows he was discharged from the MIARNG, in pay grade E-1, on 3 October 1972, under the provisions of Army Regulation 135-178 (Separation of Enlisted Personnel), Chapter 7, with an undesirable discharge.  

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

7.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, 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.  An undesirable discharge was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.

8.  Army Regulation 635-200, paragraph 3-7a, also provided that an honorable discharge was a separation with honor.  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 inappropriate.

9.  Army Regulation 635-200, paragraph 3-7b, further provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier’s separation specifically allowed such characterization.

10.  Army Regulation 135-178, in effect at the time, provided for the separation of enlisted Soldiers of the ARNG for misconduct.  An undesirable discharge was normally considered appropriate.  The separation authority could direct a general discharge if such a discharge was merited by the Soldier's overall record.  An honorable discharge was not authorized unless the Soldier's record was otherwise so meritorious that any other characterization would clearly be inappropriate.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions that he was young and very dumb at the time of his discharge and that he was railroaded into applying for a discharge at the time have been considered.  The applicant was 18 years and 9 months of age when he enlisted in the MIARNG and 19 years and 10 months of age upon entering an active duty status.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who served successfully and completed their term of service.  Therefore, the applicant’s contentions are not sufficient to support a change of his undesirable discharge. 

2.  All the facts and circumstances pertaining to the applicant's discharge action are not available for review.  However, the applicant’s record contains a properly constituted DD Form 214 which was authenticated by him.  His record also contains a properly constituted NGB Form 22.  These documents identify the applicant’s reason and authority for discharge from active duty and from the MIARNG and the characterizations of his service.

3.  In the absence of evidence to the contrary, Government regularity is presumed.  It appears the applicant’s administrative separation from active duty was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

4.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

5.  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

________  ________  ________  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)                                         AR20090004759



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ABCMR Record of Proceedings (cont)                                         AR20090004759



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