BOARD DATE:	  24 June 2010

		DOCKET NUMBER:  AR20100000501 


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 under other than honorable conditions discharge be upgraded to a general discharge.

2.  The applicant states when he was discharged, he was young and did not understand what was going on.  He does not think he should have received the discharge that he received because he was out processed in a hurry and he was not given an opportunity to say a lot on his own behalf.  He was discharged for a mistake that he made and he was not given the chance to correct this mistake.  He was essentially pushed out of the Army.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty), dated 9 April 1974.

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 show he was born on 26 July 1954 and enlisted in the Regular Army at 18 years and 5 months of age on 29 December 1972.  He completed basic combat and advanced individual training and was awarded military occupational specialty 16D (Hawk Missile Crewman).  The highest rank/grade he attained during his military service was private (PV2)/E-2. 

3.  The applicant's records also show he served in Germany from on or about 31 May 1973 to 5 April 1974.  He was assigned to the 3rd Battalion, 7th Air Defense Artillery.  

4.  He was awarded the National Defense Service Medal.

5.  The facts and circumstances of the applicant’s discharge are not available for review with this case.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged, on 9 April 1974, under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of under other than honorable conditions.  This form also shows he completed a total of 1 year, 3 months, and 11 days of creditable active service.

6.  There is no indication he petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, an under other than honorable conditions discharge is normally considered appropriate.

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 contends that his under other than honorable conditions discharge should be upgraded.

2.  The applicant’s record is void of the facts and circumstances that led to his discharge.  However, his record contains a properly-constituted DD Form 214 that shows he was discharged, on 9 April 1974, under the provisions of chapter 10 of Army Regulation 635-200 in lieu of a court-martial with an under other than honorable conditions discharge.

3.  The issuance of a discharge under the provisions of chapter 10, Army Regulation 635-200, required the applicant to voluntarily, willingly, and in writing request discharge from the Army in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The applicant has provided no information that would indicate the contrary.  Further, it is presumed that his discharge accurately reflects his overall record of service.

4.  The applicant was 18 years of age at the time he enlisted and 19 years and 4 
months of age at the time he was discharged.  However, there is no indication that his discharge was a result of his age.  Furthermore, there is no evidence in his available records nor did he provide documentation to warrant an upgrade of his discharge.

5.  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 the applicant 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)                                         AR20100000501



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)                                         AR20