IN THE CASE OF:	 

		BOARD DATE:	    9 September 2010

		DOCKET NUMBER:  AR20100008919 


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 a general discharge.

2.  The applicant states he was young and did not understand the seriousness of his being in the military.  He regrets messing up his life by the choices he made.  He has learned from his bad choices in life the hard way and takes full responsibility for his actions.  Now, he asks the Board for leniency in granting him this upgrade so he can improve as a citizen.  He is currently homeless and needs help that is denied him due to his under other than honorable discharge.
 
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.  On 5 January 1989, the applicant, at 17 years and 7 months of age, enlisted in the Regular Army.  He completed his initial training and he was awarded military occupational specialty 16T (Patriot Missile Crewmember).  He was subsequently assigned to Fort Bliss, TX.

3.  On 4 January 1990, the applicant was advanced to the rank/grade of private first class (PFC)/E-3.

4.  On 4 June 1990, the applicant departed Fort Bliss for duty in the Federal Republic of Germany, where he was assigned to a Patriot crew with D Battery, 2nd Battalion, 43rd Air Defense Artillery.

5.  Item 5 (Overseas Service) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) shows his overseas tour of duty was terminated on 11 December 1991.  Item 35 (Record of Assignments) of this same form states that he was in confinement at the Regional Correctional Facility (RCF), Fort Lewis, WA on the day his tour in Germany ended.

6.  On 27 July 1992, charges were preferred under the Uniform Code of Military Justice (UCMJ) for violation of Article 134 for receiving a $4,000.00 U.S. Treasury check, the property of the U.S. Government, while knowing it was stolen property.

7.  On 28 July 1992, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.

8.  Subsequent to consulting with legal counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, that he could receive an under other than honorable conditions discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received an under other than honorable conditions discharge.

9.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

10.  On 29 July 1992, the separation authority approved the applicant’s request for discharge and directed the applicant be discharged under other than honorable conditions.

11.  On 9 September 1992, the applicant was discharged accordingly.  He had completed a total of 3 years, 8 months, and 5 days of creditable active service with 203 days of time lost due to confinement.

12.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  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, a discharge under other than honorable conditions is normally considered appropriate.

14.  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 discharge should be upgraded to a general discharge because he was young and did not understand the seriousness of his being in the military.
2.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was over 20 years of age at the time of his misconduct.  He had satisfactorily completed training, had been advanced to pay grade E-3, and had served for approximately 2 years before his misconduct.  His prior satisfactory performance demonstrates his capability to serve and shows that he was neither too young nor immature.

3.  The applicant's voluntary separation action was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

4.  Based on the seriousness of his offense, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  Therefore, he is not entitled to an upgrade of his discharge.

5.  In view of the foregoing, 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)                                         AR20100008919



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ABCMR Record of Proceedings (cont)                                         AR20100008919



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