IN THE CASE OF:	  

		BOARD DATE:	    7 December 2010

		DOCKET NUMBER:  AR20100014638 


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, in effect, that his undesirable discharge be upgraded. 

2.  The applicant states he was young at the time and he had just gotten married. He was also the sole support of his household.

3.  The applicant provides no additional evidence 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.  The applicant's military personnel records show he was inducted into the Army of the United States on 2 April 1971 at the age of 20.  He was married at the time of his induction.  He did not complete basic combat training.  

3.  On 18 May 1971, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from on or about 14 May to 17 May 1971.

4.  On 14 January 1972, court-martial charges were preferred against the applicant for being AWOL from on or about 31 May 1971 to 5 January 1972.

5.  The applicant's separation processing package was not available for review.

6.  On 27 January 1972, the applicant was discharged under the provisions of Chapter 10 of Army Regulation 635-200 (Personnel Separations), for the good of the service with an undesirable discharge.  He had completed 3 months and 
15 days of active service and he had 191 days of time lost.  

7.  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.

8.  Army Regulation 635-200, then in effect, set forth the basic authority for the administrative separation of enlisted personnel.  Chapter 10 of that regulation provided, in pertinent part, that a member who committed an offense or offenses for which the authorized punishment included 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 trial by court-martial.  A discharge under other than honorable conditions was normally considered appropriate.  However, at the time of the applicant's separation the regulation provided for the issuance of an undesirable discharge.  

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.  

10.  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.

11.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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 contends his undesirable discharge should be upgraded because he was young at the time and he had just gotten married.

2.  The applicant’s age and marital status at time of his induction were noted.  However, many Soldiers were inducted at a young age, some of whom were married, and went on to complete their enlistments and receive honorable discharges.  Therefore, the applicant's age and marital status are not sufficient to mitigate his misconduct and establish a basis to upgrade his discharge.

3.  Although the applicant's separation package is not available, in order for him to be discharged under the provisions of chapter 10 of Army Regulation 635-200, he would have voluntarily requested discharge and acknowledged that he could receive an undesirable discharge.  

4.  In the absence of evidence to the contrary, it is presumed that all requirements of law and regulations were met and the rights of the applicant were fully protected throughout the separation process.  Further, it is presumed that the type of discharge and the reason for separation were appropriate considering his overall record of service.  

5.  The applicant had 191 days of lost time and he did not complete basic training.  Therefore, his service is considered unsatisfactory.

6.  In view of the foregoing, there is insufficient basis to upgrade the applicant's undesirable discharge.  









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)                                         AR20100014638



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ABCMR Record of Proceedings (cont)                                         AR20100014638



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