IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090009575


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 a general discharge.

2.  The applicant states that he would like his discharge upgraded so he can access benefits.  He states that his discharge should be upgraded because he was immature in 1982, and he spent a lot of time drinking.  He states that he was not able to handle the alcohol and the loneliness he was feeling.  He states that he did his job very well and to the best of his ability while he was in the military; however, he allowed himself to get into a fight which resulted in a man being hurt because of his inability to control his drinking.  He states that he has since bettered his life, and he would like to take advantage of some of the benefits that would be offered with the issuance of a general discharge.  He states he did serve honorably for the most part during his time in the Army and that he received numerous awards while he was on active duty. 

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.  On 22 January 1980, the applicant enlisted in the Regular Army at age 18, in Portland, Oregon, for 3 years, in the pay grade of E-1.  He successfully completed his training as an infantryman.  

3.  Nonjudicial punishment (NJP) was imposed against the applicant on 
25 February 1980 for striking another Soldier in the head with a pipe while the other Soldier was in the execution of his duty as sentinel and for wrongfully engaging in a fight with another Soldier while the other Soldier was on guard duty.  His punishment consisted of restriction and extra duty.

4.  He was advanced to the pay grade of E-2 on 1 July 1980.

5.  On 9 September 1980, NJP was imposed against the applicant for assaulting another Soldier by attempting to strike him with his fist.  His punishment consisted of a reduction in pay grade, a forfeiture of pay, restriction, and extra duty.

6.  The facts and circumstances surrounding the applicant’s discharge are not on file.  The applicant’s DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was discharged under other than honorable conditions on 19 January 1982, 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, 11 months, and 28 days of net active service.

7.  A review of the available records does not show that the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  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.

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 of Army Regulation 635-200 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 to a general discharge because he was immature and that he could not control his drinking while he was in the Army.

2.  His contentions have been noted.  However, his contentions are not sufficiently mitigating to warrant the requested relief.

3.  The applicant was 18 years old at the time of his enlistment in the RA, which is older that numerous individuals who enter the Army and are disciplined enough to complete their service obligations.  The applicant submitted a request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  Based on the evidence in his record, and in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct. 

4.  In order to justify correction of a military record the applicant must show 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.

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.



      _______ _   _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)                                         AR20090009575



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ABCMR Record of Proceedings (cont)                                         AR20090009575



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