BOARD DATE:	  March 2, 2010

		DOCKET NUMBER:  AR20090010903 


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, upgrade of his undesirable discharge.

2.  The applicant states that his discharge was supposed to be upgraded in 1975 prior to his enlistment in the U.S. Air Force in June 1975.  He states that he was young and stupid at the time of his enlistment and that he regrets the outcome of his service.  He states that he has only recently been informed that his discharge had not been upgraded.  He also remembers filling out paperwork to have his discharge upgraded.

3.  The applicant provides a self-authored letter, dated 15 June 2009; and a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) for the period ending 9 August 1972 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 military records for this period of service are not available to the Board for review.  This case is being considered using the applicant's 
DD Form 214.

3.  On 24 February 1972, at the age of 17, the applicant enlisted in the Regular Army (RA) in Los Angeles, CA.

4.  The facts and circumstances pertaining to the applicant's discharge are not on file.  The DD Form 214 that he was furnished shows that after completing 3 months and 25 days of total active service, the applicant was discharged on 9 August 1972, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel, chapter 10, by reason of for the good of the service in lieu of trial by court-martial.

5.  The applicant's DD Form 214 also shows that he had lost time from 24 May 1972 - 11 June 1972, 16 June 1972 - 29 June 1972, 20 July 1972 - 24 July 1972, and 25 July 1972 - 8 August 1972.  He had 51 days of lost time and he was furnished an Undesirable Discharge Certificate.

6.  There is no evidence of record that shows he ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his undesirable discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service. 

8.  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.  

9.  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.

10.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his undesirable discharge should be upgraded.

2.  His contentions have been noted; however, the available record indicates that he had approximately 51 days of lost time during this period of service.  He has provided no evidence to substantiate his contention that he was told that his discharge would be upgraded before he enlisted in the U.S. Air Force.

3.  Available records show that the applicant was 17 years of age at the time of his numerous acts of indiscipline and offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Although he was 17 years old at the time of his enlistment in the Army, his youth and immaturity alone are not sufficiently mitigating to warrant the requested relief.  The available evidence further indicates that charges were preferred against him as a result of his numerous acts of indiscipline and that he submitted a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, by reason of for the good of the service in lieu of trial by court-martial.

4.  The applicant has provided no evidence to show that the type of discharge that he received or that the reasons for his discharge were in error or unjust and in the absence of evidence to the contrary, it must be presumed that what the Army did in his case was correct.

5.  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.

6.  In view of the foregoing, there is no basis for granting the applicant's requested relief.

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)                                         AR20090010903



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ABCMR Record of Proceedings (cont)                                         AR20090010903



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