IN THE CASE OF:	  

		BOARD DATE:	  11 May 2010

		DOCKET NUMBER:  AR20090018677 


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, that his discharge characterized as under other than honorable conditions (UOTHC) be upgraded to a general discharge. 

2.  The applicant states, in effect, that he was only 17 years old at the time of his discharge.  He also states that he made a big mistake in getting out of the Army.

3.  In support of his request, the applicant provides a DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 2 March 1978; a National Archives and Records Administration (NA) Form 13046; and an NA Form 13046 (Response to Request for Separation Documents/Information).

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 on  
27 June 1977.  He completed the required training and was awarded military occupational specialty (MOS) 63H (Automotive Repairman).  The highest grade he attained was pay grade E-1.

3.  On 12 December 1977, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for disobeying a lawful order given by his superior noncommissioned officer and failure to go to his appointed place of duty at the time prescribed.  His punishment consisted of a forfeiture of $92.00 pay for 1 month, 14 days of extra duty, and 
14 days of restriction. 

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) on or about 4 January 1978 and he was dropped from the rolls on 2 February 1978.  

5.  The facts and circumstances pertaining to the applicant’s discharge proceedings are not in his Military Personnel Records Jacket (MPRJ).  However, the MPRJ does contain a DD Form 214 that shows he was discharged, on 
2 March 1978, under the provisions of Army Regulation 635-200, Chapter 10, with a UOTHC discharge.  At the time of his discharge, the applicant had completed 7 months and 4 days of active service.  He also had 33 days of lost time and 17 days of excess leave.

6.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.  

7.  Army Regulation 635-200 set forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could, at any time, after the charges had been preferred, submit a request for discharge for the good of the service - in lieu of trial by court-martial.  A UOTHC discharge was normally considered appropriate.  


8.  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.  There is no evidence that the applicant was any less mature than other Soldiers of the same age who successfully completed their service obligations.  

2.  The facts and circumstance pertaining to the applicant's discharge processing are missing; however, the available evidence does include a DD Form 214 that identifies the reason and characterization of the applicant's discharge.  

3.  The applicant's DD Form 214 confirms he was discharges under the provisions of chapter 10, Army Regulation 635-200, and furnished a UOTHC discharge.

4.  Absent evidence to the contrary it is presumed the applicant's discharge processing was accomplished in accordance with the applicable regulation and that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

5.  The available evidence indicates the applicant voluntarily requested discharge to avoid a trial by court-martial that could have resulted in him receiving a punitive discharge.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge.  

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)                                         AR20090018677



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ABCMR Record of Proceedings (cont)                                         AR20090018677



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