BOARD DATE:	  6 October 2009

		DOCKET NUMBER:  AR20090008482 


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 that he was 17 years of age and admittedly immature.  He adds that the nonjudicial punishment he received was not serious but rather for minor infractions including alcohol use.  He also states that the idea of a rehabilitation and/or treatment at the time was to lock him up and if there had been a counseling and/or treatment program at the time, he believes things would have been different.  

3.  The applicant did not provide 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 16 December 1959 and enlisted in the Regular Army at 17 years of age for a period of 4 years on 25 January 1977.  He completed basic combat and advanced individual training and was awarded military occupational specialty 63H (Auto Repairman).  The highest rank/grade the applicant attained during his military service was private/E-2.

3.  The applicant’s records reveal an extensive history of acceptance of nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) as follows:

	a.  on 17 June 1977, for failure to obey a lawful order issued by his commanding officer on or about 12 June 1977, striking another Soldier with his feet and fists on or about 12 June 1977, assaulting a second Soldier on or about 12 June 1977, and being disorderly in the barracks by pouring a can of beer on another Soldier while he was asleep in his bunk on or about 12 June 1977.  His punishment consisted of a forfeiture of $84.00 pay, 14 days of restriction, and 14 days of extra duty; 

	b.  on 28 June 1977, for being disorderly in the barracks by wrongfully beating himself about the head with a brick, threatening another Soldier, breaking a front door window pane, jumping from a second floor window on or about 14 June 1977, and absenting himself without authority on or about 20 June 1977.  His punishment consisted of a reduction a forfeiture of $84.00 pay, 14 days of restriction, and 14 days of extra duty; 

	c.  on 18 July 1977, for disobeying a lawful order by breaking restriction on or about 9 July 1977 and wrongfully and repeatedly appearing in an unkempt uniform with shirt not tucked into his trousers on or about 10 July 1977.  His punishment consisted of a forfeiture of $84.00 pay, 14 days of restriction (suspended for 6 months), and 14 days of restriction (suspended for 6 months); 

	d.  on 19 September 1977, for disrespecting his commanding officer by using profanity towards him on or about 10 September 1977.  His punishment consisted of a forfeiture of $50.00 pay and 14 days of extra duty;

	e.  on 28 September 1977, for failing to go at the time prescribed to his appointed place of duty on or about 23 September 1977.  His punishment consisted of a forfeiture of $50.00 pay; 

	f.  on 16 October 1977, for twice failing to go at the time prescribed to his appointed place of duty on or about 14 October 1977 and on or about 15 October 1977.  His punishment consisted of a forfeiture of $92.00 pay (suspended for 90 days) and 14 days of extra duty; and
	g.  on 22 October 1977, for failing to go at the time prescribed to his appointed place of duty on three separate occasions on or about 18 and 19 October 1977.  His punishment consisted of 10 days of extra duty.

4.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly constituted DD Form 214 (Report of Separation from Active Duty) that shows he was discharged on 31 January 1978 under the provisions of chapter 13-5a of Army Regulation 635-200 (Personnel Separations) by reason of misconduct with a character of service of under other than honorable conditions.  This form further shows he completed 1 year and 7 days of creditable active service.

5.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge with that Board's 15-year statute of limitations. 

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 13-5  at the time provided, in pertinent part, that members involved in frequent incidents of a discreditable nature with civil or military authorities were subject to separation for unfitness.  An undesirable discharge, under other than honorable conditions, was normally considered appropriate.

7.  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.  

8.  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 discharge should be upgraded.

2.  The evidence of record shows the applicant was 17 years of age at the time he enlisted.  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 or that his history of misconduct was a result of his age.

3.  Contrary to the applicant's contention that if there had been a counseling and/or treatment program at the time, things would have been different, the evidence of record shows that five of his seven instances of nonjudicial punishment were not alcohol-related and occurred while on duty.  Additionally, there is no indication that he addressed the alleged issue of alcoholism with his chain of command or other support channels.

4.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 31 January 1978 under the provisions of chapter 13 of Army Regulation 635-200 for misconduct.

5.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that the applicant’s discharge accurately reflects his overall record of service during his last enlistment. 

6.  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.  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)                                         AR20090008482



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ABCMR Record of Proceedings (cont)                                         AR20090008482



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