BOARD DATE:	  10 June 2010

		DOCKET NUMBER:  AR20090020786 


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 that his under other than honorable conditions discharge be upgraded to an honorable discharge.

2.  The applicant states he was young and immature and used bad judgment when he was in the service.  He states he is now a father and has turned his life around.  He has been gainfully employed since his discharge from active duty. However, he would like to work in a field other than retail management.   

3.  The applicant did not provide any supporting documents with 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 enlisted in the Regular Army on 7 March 1989 for 4 years.  He completed the training requirements and he was awarded military occupational specialty 13M (Multiple Launch Rocket System Crewmember).  The highest rank the applicant satisfactorily held was specialist/pay grade E-4.

3.  On 1 August 1989, the applicant was assigned to Battery B, 4th Battalion, 27th Field Artillery in Germany.  

4.  There are no disciplinary records available in the applicant's official military personnel file.

5.  The applicant's separation processing packet and the complete facts and circumstances pertaining to his discharge are not available for review.  However, his records contain a duly-constituted DD Form 214 that he was issued on 9 March 1992.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of court-martial.  He completed 3 years and 3 days of creditable active service with no lost time recorded.  He was 23 years and 6 months old at that time.

6.  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.

7.  References:

	a.  Army Regulation 635-200 sets forth the basic authority for the administrative 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 may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  The request must include the Soldier's acknowledgement that the Soldier understood the elements of the offense(s) charged and that the Soldier was guilty of the charge(s) or of a lesser included offense therein contained which also authorized the imposition of a punitive discharge.  A discharge under other than honorable conditions was normally considered appropriate.

		(1)  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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.
		(2)  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.

	b.  Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  The regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his youth and immaturity contributed to the poor judgment that led to his discharge is not accepted.  The applicant was 
23 years and 6 months old at the time he was separated. 

2.  Although the applicant's separation packet was not available for review, in order for him to be discharged under the provisions of Army Regulation 635-200, chapter 10, charges would have been preferred against him for an offense for which the authorized punishment included a punitive discharge.  The applicant would have been afforded the opportunity to consult with defense counsel and to voluntarily and in writing request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant would have admitted he was guilty of the offense(s) he was charged with and acknowledged that he could receive a discharge under other than honorable conditions.

3.  In the absence of evidence to the contrary, regularity in the discharge process is presumed.  The type of discharge and the reason for separation are appropriate considering the known facts of this case.  If the applicant felt that he was innocent of the charges, he should have pursued a trial by court-martial.

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 has failed to submit evidence that would satisfy that requirement.

5.  In view of the foregoing, there is insufficient evidence to upgrade the applicant's discharge characterization of service.



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)                                         AR20090020786



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ABCMR Record of Proceedings (cont)                                         AR20090020786



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