IN THE CASE OF:	  

		BOARD DATE:	        15 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007257 


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 to an honorable discharge.

2.  The applicant states that when he entered the Army at age 17 he was very rebellious and he was hoping that the Army would point him in the right direction.  He states that since then he has become an outstanding citizen and he now wants to work for the government.  He states that he needs his discharge upgraded before he can proceed.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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.  On 4 January 1977, the applicant enlisted in the Regular Army (RA) with parental consent in Manchester, New Hampshire, for 3 years in pay grade E-1.  He was 17 years old at the time of his enlistment in the RA and he successfully completed his training as a food service specialist.

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 7 February 1977 for willfully disobeying a lawful order to secure his locker.  His punishment consisted of a forfeiture of pay in the amount of $62.00, 10 days of extra duty, and 10 days of restriction.

4.  On 16 March 1978, the applicant was notified that charges were pending against him for being absent without leave (AWOL) from 8 November 1977 until 14 November 1977, 21 November 1977 until 23 November 1977, and 30 December 1977 until 12 March 1978.

5.  The applicant acknowledged receipt of the notification on 17 March 1978 and after consulting with counsel he submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10, for the good of the service in lieu of trial by court-martial.

6.  The appropriate authority approved the request for discharge on 28 March 1978 and directed the issuance of a discharge under other than honorable conditions.  Accordingly, on 13 April 1978 the applicant was discharged under other than honorable conditions under the provisions of Army Regulation 
635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He had completed 1 year and 19 days of total active service with 80 days of lost time due to AWOL.

7.  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.

8.  On 16 October 1984, the applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge.  On 16 August 1985, the ADRB denied his request.

9.  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.

10.  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 an honorable discharge in order to seek government employment.

2.  The applicant's contentions were considered.  However, the fact that the applicant desires to obtain government employment is not sufficiently mitigating to warrant the relief requested.

3.  The applicant's age at the time of his enlistment has also been considered.  Nevertheless, his records show that NJP was imposed against him for willfully disobeying a lawful order and charges were preferred against him for being AWOL for approximately 80 days.  The fact that he was 17 years old at the time of his enlistment is not a basis for upgrading his discharge.  He submitted a request for discharge for the good of the service in lieu of trial by court-martial and it appears that he simply had no desire to be in the Army.  The type of discharge directed properly reflects his overall record of service.

4.  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.

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.



      ___________XXX______________
                 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)                                         AR20090007257



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ABCMR Record of Proceedings (cont)                                         AR20090007257



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