IN THE CASE OF:	 

		BOARD DATE:	  27 May 2010

		DOCKET NUMBER:  AR20090019759 


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 his general discharge be upgraded to honorable. 

2.  The applicant states:

* he was told if he completed corrective training he would receive an honorable discharge
* he was a 17 year old Soldier

3.  The applicant provides no documentary 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 was born on 7 January 1952.  He enlisted in the Regular Army (RA) on 13 January 1969 for a period of 3 years.  He successfully completed basic combat training, advanced individual training (AIT), and basic airborne training.  He was awarded military occupational specialty 76Y (supply specialist). 

3.  On 15 December 1970, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 10 November 1970 to 24 November 1970.  He was sentenced to perform extra duty for 45 days, forfeit $80.00 per month for 3 months, and to be reduced to E-2.  On 12 March 1971, the convening authority approved the sentence.

4.  On 25 March 1971, nonjudicial punishment was imposed against the applicant for being AWOL from 23 March 1971 to 25 March 1971.  His punishment consisted of a forfeiture of pay.       

5.  On 26 August 1971, the applicant was convicted by a summary court-martial of two specifications of AWOL (from 1 June 1971 to 8 June 1971 and from 
14 June 1971 to 26 June 1971).  He was sentenced to forfeit $60.00 pay for 
1 month.  On 31 August 1971, the convening authority approved the sentence.

6.  On 22 November 1971, the applicant was convicted by a special court-martial of larceny.  He was sentenced to be confined at hard labor for 4 months, to forfeit $100.00 per month for 4 months, and to be reduced to E-1.  On 16 December 1971, the convening authority approved the sentence.  On 7 January 1972, the convening authority withdrew his action taken on 16 December 1971 and the following was substituted:  Only so much of the sentence as provided for confinement at hard labor for 3 months, forfeiture of $100.00 per month for 
3 months, and reduction to E-1.  On 8 February 1972, the unexecuted portions of the sentences to confinement at hard labor and forfeiture of pay were remitted.

7.  The facts and circumstances surrounding the applicant’s discharge are not contained in the available records.  However, the applicant's DD Form 214 shows he was released from active duty on 8 February 1972 and transferred to the U.S. Army Reserve (USAR) Control Group (Reinforcement) under the provisions of Army Regulation 635-200, paragraph 5-3, and Department of the Army message 102035Z.  His character of service was under honorable conditions (a general discharge).  His SPN [Separation Program Number] is 432 [early release enlistment inactive Army National Guard or USAR units].  He had served a total of 2 years, 6 months, and 8 days of creditable active service with 203 days of lost time.  He was discharged from the Standby Reserve on 1 January 1975 with a general discharge.


8.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Paragraph 5-3 of the regulation, in effect at the time, stated the separation of enlisted personnel for the convenience of the Government was the prerogative of the Secretary of the Army and would be accomplished only by his authority.  Except as delegated by this regulation or by special Department of the Army directives, the discharge or release of any enlisted member of the Army for the convenience of the Government would be at the Secretary's discretion with issuance of an honorable or general discharge certificate as determined by him.

9.  Department of the Army message 102035Z December 1971 is one of a series of messages which implemented post-Vietnam phase down release initiatives in the early 1970’s using the Reserve Components Active Army In-Service Recruiting Program to get personnel to serve in the Reserve Components.  These initiatives essentially provided for voluntary early release from active duty of first term Soldiers who agreed to serve one year in an active Army National Guard or USAR unit.

10.  There is no indication in the available records which shows the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

11.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality 
of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

DISCUSSION AND CONCLUSIONS:

1.  Age is not a sufficiently mitigating factor.  Although the applicant was 17 years old when he enlisted in the RA, he completed basic combat training, AIT, and basic airborne training.  In addition, he completed almost 2 years of service prior to his first incident of misconduct.

2.  In the absence of evidence to the contrary, it must be presumed that the applicant’s separation was administratively correct and in conformance with applicable regulations.  It appears his characterization of service was commensurate with his overall record of service.  As a result, 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)                                         AR20090019759



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ABCMR Record of Proceedings (cont)                                         AR20090019759



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