IN THE CASE OF:	  

		BOARD DATE:	  1 March 2012

		DOCKET NUMBER:  AR20110016942 


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 discharge under conditions other than honorable be upgraded to a general discharge.

2.  The applicant states, in effect, he was only 16 years of age when he entered the service.  He contends that he should not have been allowed to enlist.  Because of his youth, he was influenced by older service members resulting in his discharge.  He further contends that his parents conspired with the Army recruiter to change his birth certificate to put him in the military because he did not like going to school.  At the time he thought this was a good idea.  The applicant wants to give the Board a complete overview of his life for the past 
31 years to show that he has been an honorable citizen and should receive consideration for the injustice done to him.

3.  The applicant provides the following documents:

* Certification of Birth Registration issued on 20 July 1999
* Certificate of Live Birth with a pen and ink changed date
* DD Form 372 (Application for Verification of Birth for Official U.S. Armed Forces Use Only), dated 27 May 1980
* DD Form 1966/1 (Application for Enlistment - Armed Forces of the United States)
* Two letters of commendation with endorsements, dated in 1981
* Certificate of Training for completion of the Parts Load List (PLL) certification
* Certification card for the Operator Safety Training Course for the Counterbalanced sit-down rider forklift
* Training certificate for the Arcadia First Aid Course
* Training certificate for the Arcadia Cardiac Pulmonary Resuscitation (CPR) Course
* Completion certificate for First Aid Basics, Adult CPR, and the Bloodborne Pathogens Courses
* Certificate of completing the evaluation requirements as a state tested nurse aide
* Diploma, U.S. Army Quartermaster School for completion of the Materiel Supply Specialist Course
* Certificate of Completion of the Ohio Peace Officer Private Security Training Program
* Letter of Commendation for his contribution in the arrest of two suspects
* Certificate of Completion of the National Rifle Association's Personal Protection Course
* Certificate of Completion of 4 hours Occupational Safety and Health Training
* Certificate of Recognition for his commitment to the mission and vision of not-for-profit aging service providers
* Nomination for the Raymond H. Robertson Award
* Two letters of recommendation, dated in March 2011, for the care of family members
* A letter of thanks for nursing care
* Five letters of recommendation
* Certificate for employee of the Month
* Certificate of Church Membership
* Certificate of Baptism
* Certificate of Marriage
* Eight documents pertaining to the applicant's spouse
* Five letters dated between 1982 and 1983 from the Army Discharge Review Board (ADRB)
* Letter of Disbarment from Fort Dix, New Jersey, dated 23 December 1981
* DD Form 794A (Under Other Than Honorable Conditions Discharge Certificate), dated 23 December 1981

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 8 July 1980, the applicant enlisted in the Regular Army using a 1963 date of birth.  He completed his initial training and was awarded military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist).

3.  On 8 January 1981, the applicant was advanced to private, pay grade E-2.

4.  On 5 February 1981, the applicant was assigned to the Federal Republic of Germany for duty with the 2nd Battalion, 1st Air Defense Artillery Brigade.

5.  A DA Form 4833 (Commander's Report of Disciplinary or Administrative Action), dated 8 June 1981, shows that on 27 February 1981 the applicant wrongfully possessed hashish and subsequently accepted nonjudicial punishment.

6.  A DA Form 2800 (Criminal Investigation Report), dated 12 August 1981, shows the applicant knowingly received an undisclosed amount of money he knew to be stolen.

7.  The applicant's discharge packet is missing from his military records.  However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that he was administratively discharged, on 23 December 1981, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service.  His service was characterized as under conditions other than honorable. He completed 1 year, 5 months, and 16 days of creditable active duty.

8.  A DA Form 4833, dated 24 December 1981, reported that the applicant received administrative action under the provisions of Army Regulation 635-200, chapter 10, for receiving stolen property.

9.  On 13 July 1983, the ADRB considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.



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 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.  

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.

12.  The birth certificates provided by the applicant indicate that he used a 1963 date of birth while in the U.S. Army, but was actually born in 1964, making him 16 years and 4 months of age at the time of his enlistment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his under other than honorable conditions discharge should be upgraded to a general discharge because he was young and influenced by older service members.

2.  In the absence of evidence to the contrary, it is presumed that his 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.

3.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant successfully completed his initial training and was awarded an MOS.  His satisfactory performance shows that he was neither too young nor immature to serve honorably.  In addition he could have raised the issue of his age prior to his separation.

4.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  His criminal acts rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The applicant’s claim of good post-service, as indicated by the extensive packet of documents he provided, does not sufficiently mitigate his repeated acts of indiscipline during his military service.

6.  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)                                         AR20110016942



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ABCMR Record of Proceedings (cont)                                         AR20110016942



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