IN THE CASE OF:
BOARD DATE: 16 June 2011
DOCKET NUMBER: AR20100029733
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 upgrade of his under other than honorable conditions discharge to an honorable discharge.
2. The applicant states he was young and made a few mistakes. Further, he has not been in any major trouble in his adult life and would like an upgrade so he can go on with his life and get benefits.
3. The applicant provides no additional 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 applicants 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 applicants 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 11 January 1964. He enlisted in the Regular Army on 5 November 1981 at the age of 17 years, 9 months and 25 days.
3. He accepted nonjudicial punishment (NJP) under the provisions of Article
15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the following offenses:
* AWOL - 5 December 1981
* Assault and willful damage of government property - 5 April 1983
* Failure to go to appointed place of duty - 25 and 26 April 1983
4. On 23 May 1983, he was convicted by a summary court-martial of failing to go to his appointed place of duty and willfully disobeying a lawful order and a lawful command.
5. His record is void of a separation packet containing the specific facts and circumstances surrounding his discharge processing. However, a DD Form 214 shows he was discharged on 26 July 1983 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph
14-12b, for a pattern of misconduct. His characterization of service was under other than honorable conditions.
6. He completed 1 year, 8 months, and 5 days of creditable active duty service with time lost from 20 May 1983 to 5 June 1983.
7. The Army Discharge Review Board denied his request for an upgrade of his discharge on 15 December 1993.
8. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 14 establishes policy and prescribes procedures for separating members for misconduct. Specific categories include a pattern of misconduct. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.
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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends his discharge should be upgraded because he was young and made a few mistakes during his period of service.
2. Records show the applicant was 17 years, 9 months, and 25 days of age at the time of his first offense. However, there is no evidence indicating the applicant was any less mature than other Soldiers of the same age who had successfully completed military service. Additionally, the evidence shows a clear pattern of misconduct which resulted in a summary court-martial.
3. Lacking evidence to the contrary, it is presumed his administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights. The type of discharge directed and the reasons therefore were appropriate considering the seriousness of the offenses committed.
4. In view of the above, there is insufficient evidence to upgrade the applicant's under other than honorable conditions 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) AR20100029733
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ABCMR Record of Proceedings (cont) AR20100029733
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