IN THE CASE OF:	  

		BOARD DATE:	  13 January 2011

		DOCKET NUMBER:  AR20100016430 


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 an upgrade of his undesirable discharge.

2.  He states he made a terrible mistake at a young age and he has paid for this mistake for the past 30 years.  He further states he is hoping for some closure so he can move in a positive direction in life.

3.  He provides no additional documentation in support of this 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.  His record shows he was born on 25 August 1955.  He enlisted in the Regular Army on 31 March 1975 at the age of 19 years, 7 months, and 7 days.  Upon 

completion of basic combat and advanced individual training he was awarded military occupational specialty 11E (Armor Crewman).  The highest rank/grade he attained while serving on active duty was private first class (PFC)/E-3.  However, he held the rank/grade of private (PV1)/E-1 at the time of his discharge.

3.  His record reveals a disciplinary history that includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on two occasions for violating Article 86 of the UCMJ by departing from his unit in an absent without leave (AWOL) status from 3 to 8 October 1975 and from 15 to 17 November 1975.

4.  On 10 December 1975, he departed his unit in an AWOL status.  On 30 December 1975, he was dropped from the rolls of his unit as a deserter.  On 27 January 1976, he surrendered to military authorities and he was returned to military control.

5.  Special Court-Martial Order Number 77 rendered by Headquarters, Headquarters 4th Infantry Division (Mechanized), Fort Carson, CO, on 23 March 1976 show he appeared before a special court-martial and he was found guilty of violating Article 86 of the UCMJ by being AWOL from 10 December 1975 to
27 January 1976.

6.  The complete facts and circumstances of the applicant's discharge are not available for review with this case.  Special Orders Number 90 rendered by U.S. Army Retraining Brigade, Fort Riley, KS, on 10 May 1976 discharged the applicant effective 11 May 1976 and directed the issuance of an Undesirable Discharge Certificate.

7.  The DD Form 214 (Report of Separation from Active Duty) issued to him at the time shows he was separated under the provisions of Army Regulation
635-200 (Personnel Separations - Enlisted Personnel), paragraph 13-5a(1) [frequent incidents of a discreditable nature with civil or military authorities], with a character of service of under other than honorable conditions and issuance of a DD Form 258A (Undesirable Discharge Certificate).  At the time of his separation he had completed 9 months and 21 days of total active service with 110 days of time lost.

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

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13 in effect at the time, set forth the basic authority for the elimination of enlisted personnel for unfitness and unsuitability.  Paragraph 5a of the regulation provided, in pertinent part, that an individual was subject to separation for unfitness because of frequent incidents of a discreditable nature with civil or military authorities; sexual perversion including but not limited to lewd and lascivious acts, indecent exposure, indecent acts with or assault on a child; drug addiction or the unauthorized use or possession of habit-forming drugs or marijuana; an established pattern of shirking; and an established pattern of dishonorable failure to pay just debts or to contribute adequate support to dependents (including failure to comply with orders, decrees or judgments).  When separation for unfitness was warranted an undesirable discharge was normally considered appropriate.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his record should be corrected by upgrading his undesirable discharge under other than honorable conditions was carefully considered and determined to lack merit.

2.  He contends his misconduct was the result of his young age.  His record shows he was nearly 20 years of age at the time of his enlistment and between 20 and 21 years of age at the time of his offenses.  There is no evidence that he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

3.  His record reveals a disciplinary history that includes acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions and a special court-martial on one occasion.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  As such, government regularity insofar as the discharge process 
must be presumed.  It is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, it appears the applicant's discharge reflects his overall record of military service.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20100016430



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ABCMR Record of Proceedings (cont)                                         AR20100016430



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