BOARD DATE:	  18 May 2010

		DOCKET NUMBER:  AR20090018899 


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 upgrade of his undesirable discharge.

2.  The applicant states, in effect, that he was too young and under bad influence.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 14 August 1974 for a period of 3 years.  He completed basic combat and advanced 

individual training and he was awarded military occupational specialty 11B (Light Weapons Infantryman).  At the time of his enlistment he was 17 years and 4 days of age.

3. On 25 June 1975, the applicant received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty.  

4. On 23 July 1975, the applicant was reported absent without leave (AWOL).  He remained in an AWOL status until he surrendered to military authorities at his assigned unit on 24 August 1975.

5.  The applicant's record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing; however, it does contain his 23 September 1975 request for excess leave without pay and allowances pending disposition of his voluntary request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  This document was approved on 14 October 1975 by a major general, the separation authority.  The record also contains a properly-constituted DD Form 214 that shows he was discharged on 19 November 1975 under the provisions of Army Regulation 635-200, chapter 10, with an undesirable discharge.  At the time of his discharge he completed a total of 1 year, 2 months, and 5 days of creditable active service and he had accrued 38 days of time lost time due to AWOL.

6.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life because of the 
characterization of such a discharge.  An Undesirable Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

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.  The applicant's contention that his undesirable discharge should be upgraded because he was too young and under bad influence was carefully considered and determined to lack merit.  The evidence of record shows that the applicant was only 17 years old at the time of his enlistment into the U.S. Army.  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service or that he was under any type of bad influence.

2.  The applicant's record is void of the separation packet containing the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization for the applicant's discharge.  Therefore, government regularity in the discharge process is presumed.

3.  The applicant's DD Form 214 confirms he was discharged under the provisions of Army regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  In connection with such a discharge, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  In order to justify correction of a military record, the applicant must show, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant did not submit sufficient 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)                                         AR20090018899



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ABCMR Record of Proceedings (cont)                                         AR20090018899



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