IN THE CASE OF:	  

		BOARD DATE:	  15 April 2010

		DOCKET NUMBER:  AR20090018748 


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 an honorable discharge.

2.  The applicant states, in effect, that he was young and immature and he did not know how important it was to have an honorable discharge.

3.  In support of his request, the applicant provides two character reference letters from friends.

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 U. S. Army Reserve (USAR) on 13 April 1976; he was discharged from the USAR on 9 August 1976 and enlisted in the Regular Army at age 18 on 10 August 1976.  He completed the required training and was awarded military occupational specialty 05F (Radio Teletypewriter Operator (Non-Morse).  The highest grade he attained was pay grade E-2.

3.  On 21 April 1977, the applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for failure to repair to his place of duty; failure to have a lawful pass in his possession when he was apprehended in Uijonbu City, Korea; and for being cited for violation of Article 134, UCMJ by wrongfully having a habit forming non-narcotic drug (barbiturates) in his possession, on or about 12 April 1977.  His punishment consisted of a forfeiture of $90.00 pay, 14 days of extra duty, 14 days of restriction, and reduction to pay grade E-1. 

4.  On 20 June 1977, the applicant received NJP under Article 15 of the UCMJ, for resisting lawful apprehension by an Armed Force policeman, after being disorderly by engaging in hitting and kicking the directional sign located in front of Camp Red Cloud Chapel.  His punishment consisted of a forfeiture of $100.00 pay for 2 months ($100.00 suspended for 90 days), 30 days of extra duty, and 30 days of restriction.

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 18 January 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 1 year, 5 months, and 
9 days of active service.  

6.  The applicant was issued a letter, from Headquarters, U.S. Army Transfer Point, Oakland, Army Base, Oakland, CA, dated 18 January 1978, which shows the applicant was advised that he was being discharged from the Army on this same date with an Administrative Discharge due to conduct triable by court-martial.  

7.  The applicant's character reference letters indicate the applicant is an upstanding citizen, honest, and trustworthy.  He is hardworking and of strong moral character.

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

9.  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.  However, the separation authority could direct the issuance of a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

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's contention that he was young and immature and he did not know how important it was to have an honorable discharge was considered along with his character reference letters.  However, the applicant met entrance qualification standards to include age and there is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military service obligations.

2.  The applicant's DD Form 214 shows he was discharged under the provisions of chapter 10, Army Regulation 635-200, with a UOTHC discharge.

3.  The available evidence does not include a separation packet that contains the specific facts and circumstances surrounding the applicant's final discharge processing.  However, it does include a properly-constituted DD Form 214 and a letter the applicant was provided at the time of discharge that identifies the reason and character of the applicant's service.  Therefore, government regularity in the discharge process is presumed.

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

5.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and he has not shown error, injustice, or inequity for the relief he now seeks.  

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)                                         AR20090018748



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ABCMR Record of Proceedings (cont)                                         AR20090018748



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