IN THE CASE OF:	

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090018282 


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 that his undesirable discharge be upgraded to a general discharge under honorable conditions.

2.  The applicant states he was young, immature, and foolish and did not realize the consequences of his actions until it was too late.

3.  The applicant provides no additional 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's military personnel records show he enlisted in the Regular Army on 22 March 1971 for a period of 3 years at the age of 21.  He completed basic combat training and advanced individual training and was awarded the military occupational specialty of 94B (Cook).

3.  The facts and circumstances pertaining to the applicant's offenses and discharge were not available for review.

4.  On 12 April 1973, the applicant was discharged under the provisions of chapter 10 of Army Regulation 635-200 for the good of the service with an undesirable discharge.  He had completed 1 year, 10 months, and 25 days of active service during the period under review that was characterized as under other than honorable conditions.

5.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he had four periods of lost time due to absence without leave (AWOL) from:

* 14 July 1971 through 17 July 1971
* 8 September 1971 through 13 September 1971
* 2 January 1973 through 14 January 1973
* 9 February 1973 through 13 March 1973

6.  The applicant applied to the Army Discharge Review Board (ADRB) to upgrade his discharge.  On 14 April 1983, the ADRB reviewed and denied the applicant's request for upgrade.  The ADRB determined that the applicant's discharge was proper and equitable and that the discharge was properly characterized as under other than honorable conditions.

7.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative 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 punitive discharge may, at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  At the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.

8.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The 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 his undesirable discharge should be upgraded to a general discharge under honorable conditions.  He contends he was young, immature, and foolish at the time of his discharge.

2.  The applicant was 21 years of age when he enlisted in the Army and when he went AWOL.  However, many individuals younger than him were enlisted and went on to complete their enlistments and receive honorable discharges.  Therefore, the age of the applicant cannot be used as a reason to change a properly-issued discharge.

3.  Although the applicant's separation packet is not available, in order for him to be discharged under the provisions of chapter 10 of Army Regulation 635-200, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have voluntarily requested discharge and acknowledged that he could receive an undesirable discharge.

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering his overall record of service.

5.  The applicant's four periods of time lost show his service to be unsatisfactory. 
Therefore, in view of the foregoing, there is insufficient basis to upgrade the applicant's discharge to a general discharge under honorable conditions.

6.  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 that 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)                                         AR20090018282



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ABCMR Record of Proceedings (cont)                                         AR20090018282



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