BOARD DATE:	  24 November 2009

		DOCKET NUMBER:  AR20090010686 


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 his discharge be upgraded.

2.  The applicant states that he was still in his teens when he entered the military and he did not have full knowledge of his actions.

3.  The applicant provides no additional documents 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's record shows he enlisted in the Regular Army and entered active duty on 25 March 1975.  He was 17 years old at the time of enlistment.

3.  The applicant's record shows he served in Hawaii from 10 September 1975 to 19 August 1976.

4.  On 10 June 1976, nonjudicial punishment was imposed against the applicant for wrongfully possessing 85 tablets of amphetamines, a controlled substance.  His punishment consisted of reduction to private/E-2, forfeiture of $93.00 per month for 1 month, extra duty for 14 days, and restriction for 7 days.

5.  On 12 July 1976, the applicant's commander recommended that he be discharged under the provisions of paragraph 5-37, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  He cited the applicant's failure to adapt to the military environment and his failure to show promotion potential as the reasons for the discharge.  The commander recommended that the applicant be issued a General Discharge Certificate.

6.  On 13 July 1976, the applicant consulted with military counsel.  After being advised of the basis for the contemplated separation, its effects, and the rights available to him, he voluntarily consented to the discharge and elected not to submit a statement on his behalf.  The applicant acknowledged that he understood that he may expect to encounter substantial prejudice in civilian life in the event a general discharge under honorable conditions was issued to him.

7.  On 3 August 1976, the appropriate authority approved the applicant's discharge under the provisions of paragraph 5-37, Army Regulation 635-200, with the issuance of a General Discharge Certificate.

8.  The applicant's DD Form 214 shows that he received a general discharge characterized as under honorable conditions on 20 August 1976 under the provisions of paragraph 5-37, Army Regulation 635-200.  He had completed a total of 1 year, 4 months, and 26 days of creditable service.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-37 of that regulation provides, in pertinent part, that personnel whose performance of duty, acceptability for the Service, and potential for continued effective service fall below the standards required for enlisted personnel in the U.S. Army may be discharged under this paragraph.  The service of a Solider separated under this paragraph will be characterized as honorable by a commander exercising special or general court-martial jurisdiction if recommended and forwarded to the commander exercising general court martial jurisdiction.

11.  Army Regulation 635-200, paragraph 3-7, 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant argues, in effect, that his discharge should be upgraded because he was young at the time he entered the military.  Evidence of record shows that the applicant was 17 years old at the time he entered the military and 18 years old at the time of his offenses.  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.  Therefore, the contention by the applicant that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  The evidence of record confirms the applicant's discharge processing was accomplished in accordance with applicable regulations and that the type of discharge directed and the reasons were therefore appropriate considering all the facts of the case.

3.  The applicant's entire record of service was considered.  There is no record or documentary evidence of acts of valor or service that would warrant special recognition.

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.

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)                                         AR20090010686



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ABCMR Record of Proceedings (cont)                                         AR20090010686



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