IN THE CASE OF:	  

		BOARD DATE:	    27 May 2010

		DOCKET NUMBER:  AR20090020298 


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 under other than honorable conditions discharge to an honorable discharge.

2.  The applicant states he was only 17 years old when he joined the Army.  He was very immature and incapable of making adult decisions at the time of his discharge.  While stationed at Biggs Army Air Field in Texas he had problems with his platoon sergeant.  He reported that this platoon sergeant stole his gear.  He tried to pursue the matter and it created a lot of problems in his unit.  He requested a transfer and it was denied.  He was reported absent without leave (AWOL) twice, when he was present and on duty.  He found no relief through his chain of command.  He was offered a discharge and he found out that would be the only relief from his unit.  He was a teenager and he did not understand what the discharge would do to his life.  He requests his age be considered for the poor choices he made in accepting his discharge.  He is currently seeking employment on a military base and having a less than honorable discharge has put him at another disadvantage in the hiring process.

3.  The applicant provides no additional documentation 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.  His military record shows he enlisted in the Regular Army (RA) in pay grade
E-1 on 28 June 1976, for 3 years.  He was 17 years and 2 months of age on the date of his enlistment in the RA.  He completed basic combat and advanced individual training and he was awarded military occupational specialty 16R (Short Range Air Defense Artillery Crewman).  He was advanced to the rank/grade of private first class (PFC)/E-3 on 1 April 1977.

3.  On 1 July 1977, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for disobeying a lawful order on 7 June 1977.  His punishment included a reduction to pay grade E-2 (suspended for 60 days), forfeiture of $50.00 pay for 1 month, and extra duty for 7 days.  He did not appeal the punishment.

4.  On 8 September 1977, he received NJP for failing to go at the time prescribed to his appointed place of duty on 6 and 13 August 1977.  His punishment included a reduction to pay grade E-2 and a forfeiture of $97.00 pay for 1 month. He did not appeal the punishment.

5.  On 3 October 1977, he received NJP for being AWOL from 1 to 6 September 1977.  His punishment included a reduction to pay grade E-1, forfeiture of $175.00 pay for 2 months, and extra duty for 30 days.  He did not appeal the punishment.

6.  On 16 November 1977, his unit commander stated that the applicant’s duty performance had been deteriorating for about the last 6 months.  Currently, he considered the applicant to be a totally unproductive Soldier who exhibited little future promotion potential and whose continued presence in his command would have a negative effect on unit morale and efficiency.

7.  On 8 December 1977, his unit commander initiated action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 13-5a(1), for misconduct 

(frequent incidents of discreditable nature with civil or military authorities).  The unit commander stated that rehabilitation would not produce the quality Soldier acceptable in the baseline force.  A bar to reenlistment was initiated against the Soldier on 21 November 1977.

8.  On 8 December 1977, after consulting with counsel, he acknowledged the proposed separation action.  He waived his right to counsel and to have his case heard before a board of officers.  He also acknowledged that he understood that he might be issued a general discharge, under honorable conditions and the effects of such a discharge.  He further acknowledged the results of the issuance of a discharge under other than honorable conditions.  He elected not to submit a statement in his own behalf.

9.  On 8 December 1977, his unit commander recommended his separation from the service.

10.  On 9 December 1977, his battalion commander recommended approval of his separation and stated the best interest of the service could only be served by his immediate separation.

11.  On 28 December 1977, the appropriate authority approved his discharge and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12.  Accordingly, he was discharged from active duty in pay grade E-1 on
6 January 1978, under the provisions of Army Regulation 635-200, paragraph 13-5a(1) and issued an Under Other Than Honorable Conditions Discharge Certificate.  He was credited with 1 year, 6 months, and 4 days of net active service and 5 days of time lost due to AWOL.

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

14.  Army Regulation 635-200, in effect at the time, set forth the policy and prescribed the procedures for administrative separation of enlisted personnel.  Chapter 13 applied to separation for unfitness and unsuitability.  Paragraph 
13-5a(1) provided for the separation of individuals for unfitness (frequent incidents of a discreditable nature with civil or military authorities).  When separation for unsuitability was warranted, an under other than honorable conditions was issued by the separation authority.

15.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member's service generally had met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be clearly inappropriate.

16.  Army Regulation 635-200, paragraph 3-7b, also provided that a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for the Soldier's separation specifically allowed such characterization.

DISCUSSION AND CONCLUSIONS:

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

2.  His contention that due to his young age he was incapable of making adult decisions at the time of his discharge is without merit.  He was 17 years and 2 months of age when he enlisted in the RA.  He served from his enlistment in June 1976 until July 1977 without incident.  He also completed the required training and attained the rank/grade of PFC/E-3 prior to July 1977.  There is no evidence that he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their terms of service.

3.  The evidence shows he was punished under Article 15 for disobeying a lawful order, failing to go at the time prescribed to his appointed place of duty on two occasions, and going AWOL for 5 days.  In each NJP action he did not appeal his punishment.  His unit commander stated that the applicant’s duty performance had been deteriorating for about the last 6 months and he considered the applicant to be a totally unproductive Soldier who exhibited little future promotion potential and whose continued presence in his command would have a negative effect on unit morale and efficiency.  There is no evidence in his records and he has provided no evidence to show that his discharge was unjust. He has also not provided evidence sufficient to mitigate the character of his discharge.

4.  At the time separation action was initiated, he acknowledged that he might be issued an under other than honorable conditions discharge.  He elected not submit a statement in his own behalf.  His repeated unsatisfactory performance diminished the quality of his service below that meriting a general or fully honorable discharge.

5.  The evidence of record confirms his release from active duty processing was accomplished in accordance with applicable regulations and the type of discharge directed and the reasons were appropriate considering all the facts of the case.

6.  He has provided no evidence to show that his release from active duty was unjust or that his discharge should be upgraded because he would like to obtain employment on a military based.  The Board does not grant relief solely for the purpose of an applicant qualifying for employment.

7.  In view of the foregoing, there is no basis for granting his requested relief.

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)                                         AR20090020298



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ABCMR Record of Proceedings (cont)                                         AR20090020298



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