BOARD DATE:	  1 February 2011

		DOCKET NUMBER:  AR20100018229 


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 general discharge be upgraded to honorable.

2.  The applicant states:

* He was a 17 year old immature child manipulated by the recruiters
* The recruiters forged his parent's signature and a high school diploma
* The recruiters convinced him to leave immediately for the testing station
* Legally he should never have been accepted into the Army under those conditions

3.  The applicant provides no documentary evidence.

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 was born on 7 July 1960.  He enlisted in the Regular Army on 20 July 1977.  He completed basic training but did not complete advanced individual training (AIT)   While in AIT, on 13 October 1977, nonjudicial punishment (NJP) was imposed against the applicant for being absent without leave (AWOL).   

3.  While in AIT, the applicant went AWOL again on 25 October 1977 and returned to military control on 5 January 1978.  Charges were preferred against the applicant for the AWOL period on 10 January 1978.

4.  On 11 January 1978, the applicant consulted with counsel and requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of court-martial.  He indicated that by submitting his request for discharge he acknowledged he was guilty of a charge against him that authorized the imposition of a bad conduct or dishonorable discharge.  He indicated in his request that he understood he might be discharged under conditions other than honorable and furnished an under other than honorable conditions discharge, that he might be ineligible for many or all benefits administered by the Veterans Administration, that he would be deprived of many or all Army benefits, and that he might be ineligible for many or all benefits as a veteran under both Federal and State laws.  He acknowledged that he might expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.  He elected to make a statement in his own behalf.  In summary, he stated he wanted a discharge because he couldn't adapt to military life and he didn't like the Army.

5.  On 25 January 1978, the separation authority approved the applicant's voluntary request for discharge and directed that he be furnished an under other than honorable conditions discharge.

6.  He was discharged under other than honorable conditions on 8 February 1978 under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial.  He had served 4 months and 
1 day of creditable active service with 80 days of lost time.

7.  The Army Discharge Review Board (ADRB) upgraded the applicant's discharge to a general discharge on 22 October 1980.

8.  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.

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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he was a 17 year old immature child manipulated by the recruiters.  However, age is not a sufficiently mitigating factor.  Although he was 17 years old when he enlisted, he completed basic training.   

2.  The applicant contends the recruiters forged his parent's signature and a high school diploma.  However, no evidence supports this contention. 

3.  The applicant contends legally he should never have been accepted into the Army.  However, no evidence shows his enlistment was fraudulent.

4.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial was administratively correct and in conformance with applicable regulations.  The type of discharge directed and the reasons for separation were appropriate considering all the facts of the case.

5.  The applicant's discharge was upgraded to a general discharge in 1980 by the ADRB.

6.  Since the applicant's brief record of service included one NJP and 80 days of lost time, his record of service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  His record of service isn't sufficient to warrant an honorable 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)                                         AR20100018229





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ABCMR Record of Proceedings (cont)                                         AR20100018229



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