IN THE CASE OF:	  

		BOARD DATE:	  20 January 2010

		DOCKET NUMBER:  AR20090014337 


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 under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, he was only 17 years old and immature when he entered the Army.  He claims that since his discharge he obtained his General Educational Development (GED) high school equivalency diploma and he would like to reenter the Army and complete his enlistment.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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) on
13 August 1979.  He was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewman).  It also shows the highest rank/grade he attained while serving on active duty was private (PV2)/E-2 and that he was reduced to private (PV1)/E-1 for cause on 7 February 1980.  His record also shows that during his tenure on active duty, he earned the Sharpshooter Marksmanship Qualification Badge with Grenade and Rifle (M-16) Bar.  His record documents no acts of valor or significant achievement.

3.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offenses indicated:  7 May 1980, for disobeying a lawful order; 12 May 1980, for failing to go at the time prescribed to his appointed place of duty on 10 May 1980; and 8 July 1980, for failing to go at the time prescribed to his appointed place of duty on 4 July 1989.

4.  The applicant’s record is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does include a DD Form 214 that shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1), by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities and that he received a UOTHC discharge.  This document also confirms he completed a total of 9 months and 11 days of creditable active military service and that he accrued 47 days of time lost.

5.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade and change of reason to his discharge within the ADRB's 15-year statute of limitations.

6.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is normally considered appropriate for members separated under these provisions of the regulation.  The separation authority may authorize a GD or honorable discharge (HD) if warranted based on the member's overall record of service.

7.  Paragraph 3-7b of the same regulation provides that a GD 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's contention that his UOTHC discharge should be upgraded to a GD because he was young and immature when he enlisted in the military and based on his post-service accomplishments and desire to continue his service was carefully considered.  However, these factors are not sufficiently mitigating to support granting the applicant's requested relief.

2.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing.  However, it does include a properly-constituted DD Form 214 that identifies the authority, reason, and characterization of his discharge.  This document carries with it a presumption of government regularity in the discharge process.

3.  The applicant's DD Form 214 confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities.  It also confirms he completed only 9 months and 11 days of creditable active military service and that accrued 47 days of time lost.   Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and that the rights of the applicant were fully protected throughout the separation process.

4.  The applicant's record documents no acts of valor or significant achievement; however, it does reveal a disciplinary history that includes his acceptance of NJP on three separate occasions and his accrual of 47 days of time lost.  As a result, the applicant's overall record of undistinguished service did not support the issuance of a GD by the separation authority at the time of discharge, nor does it support an upgrade of his discharge at this late date.

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)                                         AR20090014337



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ABCMR Record of Proceedings (cont)                                         AR20090014337



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