IN THE CASE OF:	  

		BOARD DATE:	  17 June 2010

		DOCKET NUMBER:  AR20090021421 


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 general discharge be upgraded to a fully honorable discharge.

2.  The applicant states he was a 19 year old kid at the time and he was placed in a bad situation by a sergeant.  He was forced to take the blame for something he did not do.  The situation escalated into a physical altercation and he was badly beaten by the sergeant and his friends.  He made a very bad decision and he regrets it.  However, he has recently reentered military service and would like an opportunity to prove himself. 

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 1 August 1991. 

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 records are not available for review with this case.  This case is being considered using a reconstructed record which primarily consists of his DD Form 214.

3.  The applicant's DD Form 214 shows he was born on 18 March 1971 and he enlisted in the Regular Army at age 18 on 30 August 1989.  

4.  The facts and circumstances of the applicant's discharge processing are not available for review with this case.  However, his reconstructed record contains a properly constituted DD Form 214 that shows he was discharged on 1 August 1991 under the provisions of paragraph 14-12(c) of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct - commission of a serious offense with an under honorable conditions characterization of service.  This form also shows he completed a total of 1 year, 11 months, and 2 days of creditable active service.

5.  His DD Form 214 shows he held military occupational specialty 39B (Automatic Test Equipment Operator/Maintainer) and he was assigned to the 121st Combat Support Detachment, Fort Ord, CA at the time of discharge.

6.  This DD Form 214 also shows he was awarded the Army Service Ribbon, the National Defense Service Medal, and the Expert Marksmanship Qualification Badge with Rifle Bar.

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

8.  Army Regulation 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.


9.  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. 

DISCUSSION AND CONCLUSIONS:

1.  His record is void of the specific facts and circumstances that led to his discharge.  However, his record contains a properly constituted DD Form 214 that shows he was separated on 1 August 1991 under the provisions of paragraph 14-12(c) of Army Regulation 635-200 for misconduct - commission of a serious offense with a general discharge.

2.  The evidence of record shows he was 18 years of age at the time of his enlistment and nearly 20 years of age at the time of his discharge; however, there is no indication that he was any less mature than other Soldiers of the same age who successfully completed their military service. 

3.  Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were presumably fully protected throughout the separation process.  It is also presumed that his discharge was appropriate because the quality of his service was not consistent with the Army standards of acceptable personal conduct and performance of duty by military personnel.  

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 evidence that would satisfy this requirement.  Therefore, there is insufficient evidence to grant him the 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)                                         AR20090021421



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090021421



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1