BOARD DATE:	  15 September 2009

		DOCKET NUMBER:  AR20090006679 


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 discharge under other than honorable conditions be upgraded to a general discharge.  He also requests that his reentry eligibility (RE) code be corrected to allow him to enlist in the United States Army Reserve (USAR) or the Army National Guard.  In effect, this constitutes a request for removal or waiver of those disqualifications which preclude enlistment.

2.  The applicant states, in effect, that he was discharged after being court-martialed and found not guilty of an assault charge.  He states that during his court-martial process he disclosed that his recruiter pressured him into joining the Army as an infantryman and that the recruiter accepted a baptismal certificate instead of a birth certificate as proof of his age.  He states he enlisted in the Army in November 1976 at age 16 and that he was too immature to realize the ramifications of his actions.  He states he would not have been in the military until he was more mature and better able to handle the pressure if his recruiter had properly performed his job.  He states he would like to see his discharge upgraded to general, due to the lack of leadership that was involved in dealing with him as a young man.  The applicant goes on by referencing his Army and civilian experiences.  He also requests that his discharge be upgraded and that his RE code be changed so that he may serve his country with distinction.

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 records show that he was born on 12 September 1959, in New York City, New York.  On 26 November 1976, he enlisted in the Regular Army with parental consent, in pay grade E-1.  The applicant was age 17 at the time of his enlistment and his records show that a DD Form 372 (Request for Verification of Birth), his Social Security Card and his Certificate of Baptism were used to verify his name, age, and citizenship.  

3.  The applicant was transferred to Germany on 24 March 1977.

4.  The applicant was counseled on at least seventeen separate occasions between 28 September 1977 and 24 January 1978 for violation of company policy by returning to his company late, failure to secure his locker, an unacceptable uniform appearance, missing formation, an improperly made bunk, disobeying lawful orders, inability to conform to orders, and poor duty performance. 

5.  On 10 February 1978, nonjudicial punishment (NJP) was imposed against the applicant for willfully disobeying a lawful order from his superior commissioned officer to report for extra training

6.  On 24 March 1978, the applicant was notified that charges were pending against him for assaulting several individuals by striking one individual with a knife; cutting a second individual on his arm with a knife, striking a third individual on the eye with a closed fist, striking a fourth individual on the left side of his body with a helmet, biting a fifth individual on his right arm, and for behaving disrespectfully towards his superior commissioned officer by using disrespectful language.  

7.  The applicant acknowledged receipt of the notification, on 24 March 1978, and after consulting with counsel, he requested a discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service in lieu of trial by court-martial.

8.  Accordingly, the appropriate authority approved the applicant’s request for discharge, on 10 April 1978, and directed the issuance of an under other than honorable conditions discharge.  On 1 May 1978, the applicant was separated.  He had completed 1 year, 5 months, and 6 days of total active service.

9.  On 26 October 1978, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 27 June 1980, the ADRB denied his petition to upgrade his discharge.

10.  Army Regulation 635-200 (Enlisted Personnel) 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.

11.  Paragraph 3-7a of Army Regulation 635-200 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.  Paragraph 3-7b also 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 contends that his discharge under other than honorable conditions should be upgraded to a general discharge.



2.  The applicant’s contentions were considered.  However, his contentions are not substantiated by the available evidence.  

3.  The available evidence shows that he was counseled on at least 17 separate occasions and NJP was imposed against him once as a result of his acts of indiscipline.  He also had charges pending against him for assaulting numerous individuals and for being disrespectful in language towards his superior commissioned officer.  The fact that the applicant was age 17 at the time of enlistment does not establish a basis for upgrading his discharge.  He was no younger than other service members who enlisted at age 17 and honorably completed their service obligation.  There is no evidence to show he was age 16 at the time of his enlistment.

4.  There is no evidence in the available record, nor has the applicant submitted any evidence, to show that he was pressured into joining the Army as an infantryman, he enlisted with parental consent.  Based on the information contained in the applicant’s records it appears his service is appropriately characterized.  

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

6.  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)                                         AR20090006679



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ABCMR Record of Proceedings (cont)                                         AR20090006679



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