IN THE CASE OF:	

		BOARD DATE:	9 September 2009    

		DOCKET NUMBER:  AR20090007078 


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.

2.  The applicant states that the punishment has been in place for 19 years and that his discharge has hampered his employment possibilities for an offense that would have been a slap on the wrist in a civilian court.  He contends that he was too young to understand the terrible burden this would have on him securing employment in later life.

3.  The applicant provides no 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 was born on 22 June 1964.  He enlisted in the Regular Army on 15 January 1985 for a period of 3 years and 14 weeks.  He successfully completed one-station unit training in military occupational specialty 11B (infantryman).  On 17 February 1988, he was honorably discharged for immediate reenlistment.  He reenlisted on 18 February 1988 for a period of 4 years.

3.  On 29 June 1988, the applicant received a letter of reprimand for a civilian conviction on 17 May 1988 for driving while intoxicated.

4.  On 23 October 1989, the applicant was charged with assault, drunk and disorderly conduct, and possession of a prohibited switchblade.

5.  Between 13 March 1989 and 28 February 1990, the applicant was counseled on five occasions for various infractions which included an unsafe act, failure to go to his appointed place of duty, missing formation, poor military bearing and negative attitude, and substandard appearance.

6.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, on 11 June 1990, the applicant was counseled and notified that he was pending separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 14, for misconduct.

7.  On 24 July 1990, the separation authority approved the recommendation for discharge and directed the issuance of a discharge under other than honorable conditions.

8.  The applicant was discharged under other than honorable conditions on 13 August 1990 under the provisions of Army Regulation 635-200, 
paragraph 14-12c, for misconduct (commission of a serious offense).  He had served a total of 5 years, 6 months, and 29 days of creditable active service.

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 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 (military or civilian), 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.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.

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 20 years old when he enlisted and he successfully completed one-station unit training.  In addition, he served over 5 years of service prior to his discharge.

2.  A discharge is not upgraded for the purpose of enhancing employment opportunities.

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 to upgrade his discharge to honorable or general discharge.

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)                                         AR20090007078



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ABCMR Record of Proceedings (cont)                                         AR20090007078



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