IN THE CASE OF:	  

		BOARD DATE:	    27 March 2012

		DOCKET NUMBER:  AR20110017902 


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 other than honorable conditions be upgraded to an honorable or a general discharge.

2.  The applicant states:

* he was young and he had no idea what he was signing
* he would never have signed the discharge documents if he had known how his discharge would affect his life
* his DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was involved with civil authorities and he never had any contact or problem with civil authorities

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 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 enlisted in the Regular Army on 6 December 1978 at 18 years of age.  He completed training as a tank driver.  He was promoted to pay grade E-2 on 6 June 1979.

3.  The applicant's records show he accepted nonjudicial punishment (NJP) on three separate occasions between 9 February 1979 and 24 April 1980 for the following offenses:

* failing to go to his appointed place of duty
* failing to obey a lawful order issued by the Chief of Staff
* being absent without leave (AWOL) from 29 June 1979 until 5 July 1979

4.  The facts and circumstances pertaining to the applicant's discharge are not on file.  His DD Form 214 shows he was discharged under other than honorable conditions on 20 June 1980 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-33b(1), for misconduct – frequent involvement in incidents of a discreditable nature with civil or military authorities.  He completed 1 year, 3 months, and 8 days of net active service this period.

5.  The applicant's DD Form 214 also shows the following periods of lost time:

* 29 June 1979 through 4 July 1979
* 28 February 1980 through 2 March 1980
* 4 March 1980 through 10 April 1980
* 2 May 1980 through 19 June 1980

6.  A review of the available records fails to show the applicant ever petitioned the Army Discharge Review Board for an upgrade of his discharge.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions (a pattern of misconduct consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  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.

	b.  Paragraph 3-7a states 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 states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contentions have been noted.

2.  Youth and/or immaturity are insufficient justifications for upgrading his discharge.  His records show he accepted NJP on three separate occasions for his acts of indiscipline.  Considering the seriousness of his offenses, it does not appear that the type of discharge he received was too severe.

3.  As previously stated, the facts and circumstances surrounding the applicant's discharge are not on file.  In the absence of evidence to the contrary, it must be presumed that the actions taken by the Army in his case were correct.

4.  With regard to the applicant's contentions that his DD Form 214 shows he was involved with civil authorities, his DD Form 214 specifically shows civil or military authorities.  He clearly had frequent involvement with military authorities.

5.  In view of the foregoing, the applicant's request should be denied.

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 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)                                         AR20110017902



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110017902



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1