BOARD DATE:	  6 August 2009

		DOCKET NUMBER:  AR20090004905 


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 that his undesirable discharge be upgraded to general, under honorable conditions. 

2.  The applicant states, in effect, that he was 17 years old and he was not informed of his rights.  He contends that he got with the wrong crowd of people, that he has been leading a very productive life since his discharge, and that he needs help with health care.  

3.  The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and a copy of his DD Form 214 (Report of Transfer or Discharge) 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 are not available for review.  However, this case is being considered using reconstructed records which primarily consists of a DD Form 214.

3.  The applicant's DD Form 214 shows he was born on 1 July 1952.  He enlisted in the Regular Army (RA) on 21 January 1971 for a period of 3 years.  He was awarded military occupational specialty (MOS) 76Y (unit and organization supply specialist/armorer).    
 
4.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 shows he was discharged with an undesirable discharge on 25 August 1971 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service .  He had served 6 months and 2 days of creditable active service with 34 days of lost time.

5.  There is no indication in the available records which show the applicant applied to the Army Discharge Review Board (ADRB) within its 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

7.  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.  Age is not a sufficiently mitigating factor.  Although the applicant contends that he was 17 years old at the time in question, he was 18 years old when he enlisted in the RA.  In addition, apparently he successfully completed basic combat and advanced individual training and he was awarded MOS 76Y. 

2.  Good post-service conduct alone is normally not a basis for upgrading a discharge.

3.  A discharge is not upgraded for the purpose of obtaining Department of Veterans Affairs benefits.

4.  The applicant’s contention that he was not informed of his rights relates to evidentiary and procedural matters that could have been addressed and conclusively adjudicated in a court-martial appellate process.  However, it appears the applicant voluntarily requested discharge in lieu of trial by court-martial.

5.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  Without having the discharge packet to consider, it is presumed his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090004905



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ABCMR Record of Proceedings (cont)                                         AR20090004905



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