IN THE CASE OF:	

		BOARD DATE:	  8 December 2009

		DOCKET NUMBER:  AR20090010711 


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, in effect, that his undesirable discharge (UD) be upgraded to an honorable discharge.

2.  The applicant states, in effect, he made some mistakes that he is sorry for during his period of service because he was so young.  He also states that no one or anything caused him to do all the things he did in his early life.  He would like very much to show and tell his children and grandchildren that he loves and did something for his country.

3.  The applicant provides copies of six character reference letters 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 (RA) in pay grade E-1 on 16 November 1972 for 3 years.  The applicant was 17 years and 3 months of age on the date of his enlistment in the RA.  He completed basic and advanced individual training was awarded military occupational specialty 94B, Cook.  He was advanced to pay grade E-3 on 29 March 1973 and was assigned to Fort Benning, Georgia.

3.  On 19 September 1973, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on 13 September 1973.  His punishment included a reduction to pay grade E-2, a forfeiture of $79.00 pay per month for 1 month, and 14 days of restriction and extra duty.  He did not appeal the punishment.

4.  The applicant was reduced to pay grade E-2 on 19 September 1973.

5.  On 25 January 1974, the applicant was punished under Article 15 of the UCMJ for failing to go to his appointed place of duty on 16 January 1974.  His punishment included a reduction to pay grade E-2 (suspended for 90 days), a forfeiture of $100.00 pay per month for 2 months ($100.00 per months for 1 month suspended for 90 days), and confinement for 30 days (15 days suspended for 90 days).  He did not appeal the punishment.

6.  The applicant was reported absent without leave (AWOL) on 18 July 1974 and dropped from the rolls of his unit on 30 July 1974.  He was returned to military control and placed in confinement on 5 August 1974 at the Army Retraining Brigade at Fort Riley, Kansas.

7.  The applicant was reduced to pay grade E-1 on 17 September 1974.

8.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available records.  However, his records contain a copy of his DD Form 214 (Report of Separation from Active Duty) which shows that he was discharged on 23 January 1975 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), paragraph 13-5a(1), due to involvement in frequent incidents of a discreditable nature with authorities.  He was issued a UD Certificate.  He was credited with 1 year, 11 months, and 16 days of total active service and 82 days of lost time due to AWOL and confinement.

9.  The applicant's records are absent any evidence of awards for meritorious achievement or performance during his period of service.

10.  The applicant submitted copies of six character reference letters attesting to his post-service duties as a manager and his devotion as a friend and husband.

11.  There is no evidence that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200, in effect at the time, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Chapter 13 applied to separation for unfitness and unsuitability.  Paragraph 
13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unfitness was warranted, a UD was issued by the separation authority.

13.  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  Army Regulation 635-200, paragraph 3-7b, further 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.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UD to an honorable discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief he now seeks.

2.  The applicant's contention that he made some mistakes due to his youth is without merit.  The applicant was 17 years and 3 months of age when he enlisted in the Regular Army.  He served from his enlistment in November 1972 until September 1973 without incident.  He was 19 years old when he was AWOL.  There is no evidence that the applicant was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

3.  The evidence shows the applicant was twice punished under Article 15 for failing to go to his appointed place of duty.  He was reported AWOL on 18 July 1974 and placed in confinement upon his return to military control in August 1974.  It appears the applicant's misconduct was the reason for his elimination from the service for unfitness.  There is no evidence in the applicant's records and the applicant has provided no evidence to show that his discharge was unjust.  He also has not provided evidence sufficient to mitigate the character of his discharge.

4.  All the documents pertaining to the applicant's discharge are not available for review.  The applicant's record contains a properly constituted DD Form 214 which was authenticated by him.  This document identifies the reason and authority for the applicant's discharge and the characterization of his service.

5.  In the absence of evidence to the contrary, government regularity is presumed.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  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)                                         AR20090010711



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ABCMR Record of Proceedings (cont)                                         AR20090010711



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