IN THE CASE OF:	  

		BOARD DATE:	  12 May 2011

		DOCKET NUMBER:  AR20100026676 


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 under other than honorable conditions discharge be upgraded.

2.  The applicant states he has thought about his discharge for many years.  He contends that he did not have proper representation and made a very bad decision.  There is nothing in his military records showing he deserved this type of discharge.  He was young and did not know any better.  His discharge has hurt him since his separation.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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 10 September 1981, the applicant, at 18 years and 1 month of age, enlisted in the Regular Army.  He completed his initial training and was awarded military occupational specialty 11H (Heavy Anti-armor Weapons).

3.  The applicant completed assignments at:

* Fort Lewis, Washington (December 1981-December 1982)
* Schofield Barracks, Hawaii (January 1982-September 1985)
* Fort Benning, Georgia (October 1985-December 1986)

4.  On 20 January 1987, the applicant was assigned to Company E, 1st Battalion, 36th Infantry Regiment, located in the Federal Republic of Germany (FRG).

	a.  On 4 February 1987, he was promoted to sergeant, pay grade E-5.

	b.  On 5 March 1988, he accepted nonjudicial punishment for willfully disobeying a lawful order by driving a privately owned vehicle without a license after his commander had told him not to do so.  He was reduced to private first class, pay grade E-3.

5.  On 27 September 1988, the applicant was reassigned within the 36th Infantry Regiment to the 2nd Battalion.

	a.  On 1 January 1989, he was advanced to specialist, pay grade E-4.

	b.  On 7 June 1989, he was laterally appointed to corporal, pay grade E-4.

	c.  On 1 December 1989, he was promoted to sergeant, pay grade E-5.

	d.  On 11 January 1990, he departed the FRG for the United States.

6.  On 28 February 1990, the applicant was assigned to Company B, 2nd Battalion, 2nd Infantry Regiment, 9th Infantry Brigade, located at Fort Lewis, Washington.

	a.  On 15 October 1990, the applicant was barred to reenlistment due to recurring indebtedness.

	b.  On 13 January 1991, he was placed on temporary duty (TDY) and sent to Saudi Arabia for duty with the 475th Quartermaster Group.

	c.  On 28 April 1991, he departed Saudi Arabia.

7.  On 15 May 1991, the applicant was assigned to Headquarters and Headquarters Company, 60th Infantry Regiment, located at Fort Lewis, Washington.

8.  The discharge packet is missing from his military records.  However, his DD Form 214 shows that he was administratively discharged on 5 September 1991, 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 9 years, 11 months, and 26 days of creditable active duty.

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.

	a.  Chapter 10 of that regulation provides 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.

	b.  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.

	c.  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 (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 under other than honorable conditions discharge should be upgraded because he was young and did not know any better.  Furthermore, he contends that he did not receive proper counsel and did not deserve this type of discharge.

2.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was 18 years of age when he enlisted.  He had twice been promoted to the rank of sergeant, pay grade E-5, and had more than 9 years of creditable service at the time of his discharge.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

3.  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.

4.  The available records do not contain any evidence of the misconduct that led to the applicant's discharge.  However, the applicant has not provided any substantiating evidence or convincing argument to support his contention that he had not received proper counsel or that his discharge is unjust.

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)                                         AR20100026676





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ABCMR Record of Proceedings (cont)                                         AR20100026676



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