IN THE CASE OF:	  

		BOARD DATE:	       13 AUGUST 2009

		DOCKET NUMBER:  AR20090005591 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states that he was assigned to the only live fire base in the Army which was in Korea, that he was taken through some severe training that has affected his life ever since, and that he was just out of high school and had never experienced any combat situation.  He does not feel that he was given an equal opportunity to adjust to this change of life, that he became dependent on alcohol and drugs, and that he was not given any type of rehabilitation. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), a Board of Officers Summary of Proceedings, and a Discharge Under Other Than Honorable Conditions Certificate 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 22 July 1959.  He enlisted in the Regular Army on 7 February 1978 for a period of 3 years.  He successfully completed basic combat training and advanced individual training in military occupational specialty 11B (infantryman).  

3.  On 21 October 1980, nonjudicial punishment was imposed against the applicant for being disorderly in command and possession of marijuana.  His punishment consisted of a forfeiture of pay (suspended), extra duty, and restriction.  

4.  The Board of Officers Summary of Proceedings provided by the applicant shows he was convicted by a summary court-martial of five specifications of disobeying lawful orders and one specification of resisting apprehension.  No other details are available. 

5.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  

6.  The Board of Officers Summary of Proceedings also shows the applicant appeared before a board of officers on 3 December 1980.  The board found that the applicant had the ability to perform military duty in a satisfactory manner and his misconduct was evidenced by his summary court-martial, his Article 15, and his numerous discreditable incidents recorded by his cadre at the Retraining Brigade.  The board recommended that the applicant be eliminated from the service for misconduct with the issuance of a discharge under other than honorable conditions.

7.  The applicant's DD Form 214 shows he was discharged under other than honorable conditions on 9 January 1981 under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct due to frequent incidents of a discreditable nature with civil or military authorities.  He had served a total of 
2 years, 9 months, and 16 days of creditable active service with 47 days of lost time.

8.  There is no evidence of record which shows the applicant was diagnosed with alcohol or drug abuse or dependency. 

9.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  Chapter 14, paragraph 14-33b(1), provided for discharge due to frequent incidents of a discreditable nature with civil or military authorities.  A discharge under other than honorable conditions was normally considered appropriate.  

11.  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.  

12.  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.  The applicant was 18 years old when he enlisted and he successfully completed basic combat training and advanced individual training.  In addition, he completed over 2 and 1/2 years of service prior to his misconduct.

2.  Although the applicant contends that he became dependent on alcohol and drugs while in the Army, there is no evidence of record which shows that he was diagnosed with alcohol or drug abuse or dependency prior to his discharge or that he referred himself for treatment of alcohol/drug problems.

3.  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 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)                                         AR20090005591



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ABCMR Record of Proceedings (cont)                                         AR20090005591



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