BOARD DATE:	  2 November 2010

		DOCKET NUMBER:  AR20100012569 


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 discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states at the time he joined the Army, he was young and had just gotten married to his girlfriend who was pregnant.  He was just looking for a way out of facing the responsibilities that had been put upon him because of his sinful life.  He started off wrong and did not get it right.  He now knows the Army had a lot more [to offer].  During the last 40 years he has always loved his country and is proud of what little time he had tried to do a good job [in the Army].  In his heart there is a hurt because he cannot put an honorable discharge on his wall or talk about the Army because of his shame.  He is thankful for having a good wife and two sons.  He has been called to the ministry and runs the Crossroads Rescue Mission in Shelby, North Carolina.  The mission deals with individuals who suffer with drug and alcohol addiction.  They provide shelter, clothes and the gospel.  He has seen many success stories, but he does not feel successful because of the way he left the Army.  He asks for help to be a success.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation from Active Duty).

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 25 August 1975, the applicant, at the age of 20 years and 3 months, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11B (Light Weapons Infantryman).

3.  On 19 December 1975, the applicant departed Fort Polk, Louisiana for duty in the Republic of Korea.  He was subsequently assigned to the 17th Infantry Regiment, 2nd Infantry Division.

4.  The applicant accepted the following nonjudicial punishments (NJPs) while assigned in the Republic of Korea:

	a.  28 July 1976, for being incapacitated for duty due to previous intoxication and

	b.  12 November 1976, for missing morning formation.

5.  While stationed at Fort Stewart, Georgia, the applicant accepted NJP on 
21 April 1977, for twice being absent without leave (AWOL) for a total of about 
6 days in March and April 1977.

6.  Item 21 (Time Lost) of the applicant's DA Form 2-1 (Personnel Qualification Record - Part II) indicates that he was also AWOL:

	a.  from 11 through 15 May 1977 (5 days);

	b.  from 20 through 22 May 1977 (3 days); and

	c.  from 24 May through 2 August 1977 (71 days).



7.  A DA Form 3836 (Notice of Return of US Army Members from Unauthorized Absence) dated 5 August 1977, reports that the applicant was apprehended by civilian authorities and returned to military control effective 3 August 1977.

8.  The discharge packet is missing from the applicant's military records.  However, his DD Form 214 shows that he was administratively discharged on 
20 September 1977, under the provisions of Army Regulation 600-200, chapter 10, for the good of the service.  His service was characterized as under other than honorable conditions.  He had completed 1 year, 10 months and 9 days of creditable active duty and had 113 days of lost time.

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

10.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

12.  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.

13.  Army Regulation 15-185 (Army Board for Correction of Military Records (ABCMR)) paragraph 2-9 provides that the Board 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 contends that his discharge under other than honorable conditions should be upgraded to honorable because he was young at the time and had lived a life of sin.  He further contends that he has gotten it right for the last 40 years and wants the Army to help him succeed by upgrading his discharge.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with his overall record.

3.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was in his 20th year of age, had satisfactory completed training, and had served for almost a year before any negative incidents are documented.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

4.  The applicant’s unsubstantiated claim of good post-service conduct is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  There is no evidence of an error or injustice in this case.  Accordingly, the applicant's request should be denied.

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)                                         AR20100012569





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ABCMR Record of Proceedings (cont)                                         AR20100012569



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