BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090017315 


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 to a general, under honorable conditions discharge.

2.  The applicant states he was young and made bad choices.

3.  The applicant provides no additional evidence 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 enlisted in the Regular Army on 10 April 1972.  He was
18 years old and a high school graduate.

3.  Between June 1972 and October 1972 he was punished three times under Article 15 of the Uniform Code of Military Justice (UCMJ):

* June 1972 for failing to go at the time prescribed to his appointed place of duty
* July 1972 for being absent without leave (AWOL) on 24 July 1972 and from 30 June to 5 July 1972
* October 1972 for disobeying an order and failing to go at the time prescribed to his appointed place of duty

4.  The applicant completed basic combat and advanced individual training and he was awarded military occupational specialty (MOS) 11E (Armor Crewman).  In October 1972 he was assigned to an armor unit in Germany.

5.  In February 1973 he was convicted by a special court-martial of:

* Forging a signature on a sick slip
* Two counts of disobeying an order
* Absenting himself from his place of duty

6.  Documents associated with the applicant’s administrative separation action are not in his Official Military Personnel File.  His DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 8 June 1973 under conditions other than honorable under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 13 by reason of misconduct - frequent involvement of discreditable nature with authorities.  He was issued an Undesirable Discharge Certificate.

7.  When the applicant was discharged he had 10 months and 8 days of creditable active service and 111 days of time lost.

8.  His records do not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  References:

	a.  Army Regulation 635-200, chapter 13, in effect at the time, provided for the separation of enlisted Soldiers for unfitness.  Discharge of Soldiers for frequent incidents of a discreditable nature with civilian or military authorities served as a basis to initiate separation actions.  A discharge under conditions other than honorable was generally appropriate unless the individual received a 

personal decoration or the individual’s particular circumstances warranted an honorable or a general, under honorable conditions discharge.

	b.  Army Regulation 635-200 states the quality of service of a Soldier on active duty is affected adversely by conduct of a nature which brings discredit on the Army or is prejudicial to good order and discipline.  Characterization may be based on conduct in the civilian community.  

	c.  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 was 18 years old when he enlisted in the Army.  His youth at the time is not sufficiently mitigating to excuse the conduct leading to his administrative separation.

2.  The applicant’s record indicates he had multiple periods of lost time, he was punished three times under Article 15, and he had one court-martial conviction.  His undesirable discharge was appropriate as a result of his record of service.

3.  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 the aforementioned requirement.

4.  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)                                         AR20090017315



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ABCMR Record of Proceedings (cont)                                         AR20090017315



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