IN THE CASE OF:	

		BOARD DATE:	11 August 2009  

		DOCKET NUMBER:  AR20090006170 


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 an upgrade of his discharge. 

2.  The applicant states, in effect, that he was given a general under honorable conditions discharge.  He now would like to have his discharge upgraded to an honorable discharge because he was only 18 years old when he joined the Army. He was later sent to Germany upon completion of training where Soldiers could consume alcohol at the age of 18 legally.  When he returned to the United States he received quite a few drinking under the age violations.  He was a very high speed Soldier and he made the rank of pay grade E-4 in less than 2 years because he knew his job well.  His only mistakes were drinking under the age.  He was not old enough to drink, but old enough to be sent to war.      

3.  The applicant provides no additional documentary evidence 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 record shows that he enlisted in the Regular Army and entered active duty on 15 August 1990.  He completed the required training and was awarded military occupational specialty 19K (Armor Crewman).  The highest grade he attained was pay grade E-4.

3.  Between January 1992 and December 1993, the applicant was counseled on five different occasions for four incidents of disobeying a lawful order and for not paying his debts.

4. On 9 December 1992, while assigned to a unit in Germany, the applicant received nonjudicial punishment for operating a vehicle while drunk with a passenger in the car and for the wrongful possession of a false military identification card (ID).  His imposed punishment was a reduction to pay grade 
E-1, a forfeiture of $392.00 pay per month for 2 months, and 45 days extra duty.  The reduction from pay grade E-3 to E-1 and the forfeiture of $196.00 pay per month for 2 months was suspended for 6 months and automatically remitted if not vacated before 1 June 1993.

5.  On 21 March 1993, the applicant was arrested by Meade County Police for driving under the influence, reckless driving, driving without insurance, possession of alcohol by a minor and for speeding.  He was convicted by civil authorities on 22 March 1993 and sentenced to 10 days in jail and a $1,000.00 fine.  

6.  On 15 April 1993, the applicant's unit commander notified him of the intention to process him for separation under the provisions of Army Regulation 635-200, chapter 14, paragraph 12b, by reason of misconduct – pattern of misconduct.  The factual reason for his proposed action was that the applicant demonstrated a pattern of operating vehicles while drunk and underage drinking.  The unit commander recommended that the applicant receive a General Discharge Certificate.  

7.  On the same day, the applicant acknowledged receipt of this notification.  He also consulted with legal counsel and was advised of the basis for the contemplated separation action and its effect and of the rights available to him.  Subsequent to receiving this counsel, the applicant elected to waive his right to have his case considered and to personally appear before a board of officers.  He also elected not to submit statements in his own behalf and he waived representation by counsel.  The applicant also acknowledged that he understood he could encounter substantial prejudice in civilian life if he received a discharge under other than honorable conditions.

8.  On 24 June 1993, the separation authority approved the applicant's discharge and directed the applicant receive a discharge under honorable conditions (General).  On 12 July 1993, the applicant was discharged accordingly.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued at the time shows he held the rank of private, pay grade E-1, and that he had completed a total of 2 years, 10 months, and 28 days of creditable active military service.  

9.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  

10.  Army Regulation 635-200 governs the current policies and procedures for the separation of enlisted personnel.  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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contentions in effect, that the character of his service should be changed to an honorable discharge because he was only 18 years old when he joined the Army was carefully considered and found to be without merit. 

2.  Records show that the applicant was 18 years of age at the time of his offenses.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed military service.

3.  The evidence of record confirms the applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's record of military service was not sufficiently meritorious for the separation authority to support an honorable discharge at the time of his discharge, nor does it support an upgrade at this time.  As a result, his discharge accurately reflected his overall record of service.

4.  The evidence of record shows the applicant was properly discharged in accordance with the regulations in effect at the time.  Therefore, lacking evidence to the contrary, it is determined that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process. 

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

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)                                         AR20090006170



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ABCMR Record of Proceedings (cont)                                         AR20090006170



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