IN THE CASE OF:	  

		BOARD DATE: 	         30 June 2009

		DOCKET NUMBER:  AR20090005961 


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 a general discharge.

2.  The applicant states that he was young and dumb and made some bad decisions and/or choices when he was in the service.  Now he is productive.  The applicant does not believe that his service was less than honorable.  He was just out on his own for the first time and exposed to things for the first time and did not know how to handle the pressure.

3.  The applicant provides two letters attesting to the applicant's work ethic, demeanor, and selflessness.

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 23 June 1955.  He enlisted in the Regular Army on 24 August 1972, was awarded the military occupational specialty of automotive repairman, and was promoted to pay grade E-2.  He served in Hawaii.

3.  On 17 December 1973, the applicant was convicted by a special court-martial according to his pleas of guilty of having in his possession particles of marijuana, a controlled substance, and operating a vehicle while drunk.

4.  On 13 March 1974, court-martial charges were preferred against the applicant for having in his possession an undetermined amount of marijuana, a controlled substance, and for failing to go at the time prescribed to his appointed place of duty.

5.  On 15 April 1974, the applicant requested discharge for the good of the service in lieu of trial by court-martial.  In that request he admitted guilt of the charges against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge.  He acknowledged that he understood that he could receive an undesirable discharge and that he may be ineligible for benefits administered by the Veterans Administration (now the Department of Veterans Affairs).

6.  The applicant's request was approved by the appropriate authority.  Accordingly, on 9 May 1974, the applicant was issued an Undesirable Discharge Certificate.  He had 1 year, 8 months and 24 days of active service.  The applicant was almost 19 years old at the time of his discharge.

7.  On 22 June 1989, the Army Discharge Review Board denied the applicant's request for a discharge upgrade.

8.  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 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.  A discharge under other than honorable conditions is normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

9.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

10.  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 was, in fact, young during his time on active duty.  However, many Soldiers the applicant's age honorably completed their enlistments.  As such, his age is not sufficient to warrant upgrading a properly issued discharge.

2.  The applicant was convicted by a summary court-martial of two offenses and was charged with two additional offenses when he requested discharge.  These are serious acts of misconduct which certainly warranted an undesirable discharge.

3.  The applicant's post-service conduct is commendable.  However, he has not done anything so meritorious as to warrant upgrading his discharge.

4.  The applicant's continuous misconduct would not warrant a general discharge or an honorable discharge.

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

____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)                                         AR20090005961





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ABCMR Record of Proceedings (cont)                                         AR20090005961



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