BOARD DATE:	  27 August 2009

		DOCKET NUMBER:  AR20090006811 


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 under other than honorable conditions discharge to a general, under honorable conditions discharge. 

2.  The applicant states that he was young at the time and his parents were separated.  He joined the military to escape some of the domestic issues but he was exposed to marijuana which led to receiving punishment and ultimate discharge.  He adds that he did not understand the consequences of his actions and that he currently has some medical needs and would like an upgrade so he may qualify for some of the Department of Veterans Affairs benefits.

3.  The applicant listed three statements from his mother, sister, and employer on his application; however, he did not provide the listed statements or any additional documentary evidence in support of his request.

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 he was born on 28 November 1955 and he enlisted in the Regular Army (RA) for a period of 2 years on 5 January 1973 at the age of 17.  He was subsequently assigned to Fort Ord, CA, for completion of basic combat and advanced individual training.  The highest rank/grade he attained during his military service was private (PV1)/E-1. 

3.  The applicant's records reveal a disciplinary history which includes his acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 20 March 1973, for having one ounce, more or less, of marijuana in his possession, on or about 3 March 1973.  His punishment consisted of a forfeiture of $75.00 pay for 1 month and 5 days of restriction; and 

	b.  on 3 May 1973, for twice disobeying a lawful order on or about 2 May 1973.  His punishment consisted of a forfeiture of $40.00 pay for 1 month.

4.  The facts and circumstances surrounding the applicant's separation are not available for review with this case; however, his records contain a properly constituted DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged on 3 July 1973 for unfitness, frequent involvement in incidents of a discreditable nature with civil or military authorities, under the provisions of chapter 13 of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) with a character of service of under other than honorable conditions.  This form also shows he completed
5 months and 23 days of creditable active military service.

5.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

6.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 contained the policy and outlined the procedures for separating individuals for unfitness.  It provided, in pertinent part, that individuals would be discharged by reason of unfitness when their records were characterized by one or more of the following:  a) frequent incidents of a discreditable nature with civil or military authorities; b) sexual perversion; c) drug addiction; d) an established pattern of shirking; and/or e) an 
established pattern showing dishonorable failure to pay just debts.  This regulation prescribed that an undesirable discharge was normally issued unless the particular circumstances warranted a general or an honorable discharge.

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.  The applicant contends that his under other than honorable conditions discharge should be upgraded to a general, under honorable conditions discharge.

2.  The facts and circumstances of the applicant's discharge are not available for review with this case.  In the absence of evidence to the contrary, it is presumed that the applicant’s separation was accomplished in compliance with applicable regulations and there is no indication of procedural errors that would tend to jeopardize his rights.  It is also presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time and the character of the discharge is commensurate with the applicant's overall record of military service.  Therefore, the reason for discharge and the characterization of service were both proper and equitable.  

3.  The evidence of record shows that the applicant was 17 years of age at the time of his enlistment.  However, there is no evidence that indicates that the applicant was any less mature than other Soldiers of the same age who successfully completed their military service.  Additionally, there is no evidence in the available records and the applicant has not provided sufficient evidence showing that his acts of misconduct were the result of his age.

4.  The applicant has not provided any evidence or sufficiently mitigating argument to warrant upgrade of his discharge.  Additionally, the ABCMR does not correct records solely for the purpose of establishing eligibility for other programs or benefits.  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 did not submit evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant the applicant's requested relief in this case.

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)                                         AR20090006811



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ABCMR Record of Proceedings (cont)                                         AR20090006811



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