IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090011144 


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 upgrade of his under other than honorable conditions discharge to an honorable discharge or general under honorable conditions discharge.

2.  The applicant states he was young at the time; however, he is older now and able to recognize things in a more mature manner.

3.  The applicant provides no additional documentary evidence 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 enlisted in the Army National Guard for a period of 6 years on 7 September 1977.  Records show he was 18 years of age at the time of his enlistment.  The applicant was ordered to active duty for training (ADT) on 30 December 1977.  Upon completion of training, he was awarded military occupational specialty 36K (Tactical Wire Operator) and honorably released from ADT on 1 April 1978.

3.  A National Guard Bureau Form 22 (Report of Separation and Record of Service) shows the applicant was separated from the Kentucky Army National Guard under honorable conditions on 17 September 1979 and involuntarily ordered to active duty as a Reserve of the Army.  At the time he had completed 2 years and 11 days of net service this period.  Records show he was 20 years of age at the time he was ordered to active duty.

4.  On 20 May 1980, the applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of reduction to grade E-2 (suspended for 90 days), forfeiture of $127.00 for 1 month, and 14 days of restriction.  On 10 June 1980, the suspended reduction was vacated.

5.  On 11 September 1980, the applicant received NJP under Article 15, UCMJ, for failing to go at the time prescribed to his appointed place of duty.  His punishment consisted of forfeiture of $104.00 for 1 month and 7 days in the Correctional Custody Facility.

6.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 20 October 1980, shows a bar to reenlistment was imposed by the brigade commander.  Item 12 (Other Factual and Relevant Indicators of Untrainability or Unsuitability) of the DA Form 4126-R states the applicant demonstrated a consistently poor attitude, remained apathetic toward his duties and responsibilities, performed his tasks poorly, and appeared completely unable to adjust to the military environment.  This item also shows that the applicant was pending a summary court-martial for failure to obey a lawful order.

7.  On 21 October 1980, the applicant voluntarily requested a discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10 (Discharge for the Good of the Service).  The applicant's request for discharge states he had not been subjected to coercion with respect to his request for discharge.  It states he was afforded the opportunity to consult with counsel, that he was advised he may be discharged under other than honorable conditions, that he may be deprived of many or all Army benefits, that he may be ineligible for many or all benefits administered by the Veterans Administration, that he may be deprived of his rights and benefits as a veteran under both Federal and State laws, and that he may expect to encounter substantial prejudice in civilian life because of a discharge under other than honorable conditions.

	a.  The applicant was advised that he may submit any statements he desired in his own behalf which would accompany his request for discharge.  However, his request for discharge indicates that statements in his own behalf were not submitted with his request.

	b.  The applicant's separation packet shows that a captain serving in the Judge Advocate General’s Corps certified with his signature he had advised the applicant of the possible effects of an under other than honorable discharge and of the procedures and rights available to him.

8.  On 5 November 1980, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10.  The commander also directed the applicant be furnished an Under Other Than Honorable Conditions Discharge Certificate.

9.  The applicant's DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged on 18 November 1980 in accordance with the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial and his service was characterized as under other than honorable conditions.  At the time he had completed 1 year and 2 months of net active service.

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

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the UCMJ.  A punitive discharge is authorized for offenses under Article 82 for failure to obey an order or regulation.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included a bad conduct or dishonorable discharge could submit a request for discharge for the good of the service.  The request could be submitted at any time after charges were preferred and must include the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

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, 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 under other than honorable conditions discharge should be upgraded because he was young and immature at the time and he is now able to recognize things in a more mature manner.

2.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The Board notes that the applicant had satisfactorily completed training, had served for over 1 year, and he was 21 years of age before any negative incidents are documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

3.  The applicant's request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid trial by court-martial was voluntary and administratively correct.  All requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  The offense that led to his discharge far outweighs his overall record.  Therefore, considering all the facts of the case, the characterization of service directed was appropriate.

4.  The applicant's contention that he is older now and able to recognize things in a more mature manner was also carefully considered; however, it is insufficient as the sole basis for upgrading his discharge.

5.  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.

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)                                         AR20090011144



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090011144



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1