IN THE CASE OF:	  

		BOARD DATE:	    14 January 2010

		DOCKET NUMBER:  AR20090013921 


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 an upgrade of his discharge.

2.  The applicant states that he was young at the time and made a mistake.  His grandmother was ill and he took emergency leave to see her.  Upon return from leave, he felt depressed and mentally unable to function under the circumstances.  He took it upon himself to depart in an absent without leave (AWOL) status.  He ultimately turned himself in, but upon his return, the acting commander did not want to discuss the issues with him (the applicant).  He also states that he has been a successful and model citizen since his discharge with a great profession and happy life.  He is now seeking stable employment and needs his discharge upgraded.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 24 October 1980, in support of his request.

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 was born on 22 September 1961 and enlisted in the Regular Army at 18 years of age for a period of 3 years on 20 November 1979.  He completed basic combat and advanced individual training and was awarded military occupational specialty 95B (Military Police).  The highest rank/grade he attained during his military service was private/E-2.

3.  The applicant’s record further shows he was awarded the Marksman Marksmanship Qualification Badge with Rifle Bar and the Sharpshooter Marksmanship Qualification Badge with Grenade and Pistol Bars.

4.  On 25 February 1980, the applicant accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice for failing to obey a lawful general regulation by leaving his weapon unattended in a latrine on or about 14 February 1980.  His punishment consisted of 5 days of restriction and 5 days of extra duty.

5.  On 20 August 1980, the applicant pled guilty at a summary court-martial to one specification of being AWOL during the period from on or about 20 June 1980 through on or about 11 July 1980 and pled not guilty to one specification of being AWOL during the period from on or about 12 July 1980 through on or about 21 July 1980.  The court found him guilty of both specifications and sentenced him to 30 days of confinement at hard labor, a forfeiture of $250.00 pay for 1 month, and a reduction to private/E-1.  The sentence was adjudged and approved on 20 August 1980.

6.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged on 24 October 1980 under the provisions of paragraph 14-33b of Army Regulation 635-200 (Personnel Separations) for misconduct (an established pattern of shirking) with an under other than honorable conditions character of service.  This form also shows he completed 9 months and 21 days of creditable active service and had 43 days of lost time.

7.  There is no indication in the applicant’s records that he applied to 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, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities, an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions was normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority could direct an honorable or general discharge if such were merited by the Soldier's overall record.

9.  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.

10.  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 discharge should be upgraded.

2.  The evidence of record shows the applicant was 18 years of age at the time of his enlistment and nearly 19 years of age at the time he committed his offense.  However, 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 or that his history of misconduct was a result of his age.

3.  The applicant’s record is void of the facts and facts and circumstances that led to his discharge.  However, absent evidence to the contrary, it is presumed that the applicant’s discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  It is also presumed that all requirements of law and regulation were met and the rights of the applicant appear to have been fully protected throughout the separation process.

4.  The applicant had a history of misconduct including two instances of nonjudicial punishment, one court-martial, confinement, and multiple instances of AWOL.  As a result, his record of service was not satisfactory and is insufficiently meritorious to warrant an honorable discharge or general discharge.

5.  The applicant's successful post-service professional and personal achievements are noted; however, the ABCMR does not correct records for the purpose of establishing entitlements to other programs or benefits.  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 did not submit evidence that would satisfy this requirement.  Therefore, he is not entitled to 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)                                         AR20090013921



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20