IN THE CASE OF:	  

		BOARD DATE:	  19 July 2012

		DOCKET NUMBER:  AR20120001215 


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 an upgrade of his undesirable discharge to an honorable discharge.

2.  The applicant states he has paid his dues and would like his dignity and honor restored.  He also states he:

   a.  enlisted in the Army when he was age 17 primarily to get away from abusive grandparents.  He also wanted to serve his country.

	b.  completed basic combat and advanced individual training.  He wanted to serve in Southeast Asia, but he was assigned to Hawaii.

	c.  acknowledges he was immature and he got caught up in a bad situation.  He adds that the individuals he was involved with turned out not to be his friends.  As a result, he pled guilty to the charges against him to stay alive.

	d.  regrets his mistakes and apologizes for disrespecting the uniform.

3.  The applicant provides a letter from his doctor.

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 17 March 1971 for a period of
3 years.  At the time he was 17 years of age.  Upon completion of training, he was awarded military occupational specialty (MOS) 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 20 (Enlisted Qualification Record) shows in:

	a.  item 31 (Foreign Service):  he was assigned to Hawaii on 13 August 1971; and

	b.  item 21 (Time Lost):  he was absent without leave (AWOL) 128 days.

4.  The applicant's military personnel records do not contain a DD Form 458 (Charge Sheet) relating to the period of AWOL or a copy of his separation packet.

5.  Headquarters, U.S. Army Personnel Center, Hawaii, Special Orders Number 145, dated 22 December 1972, show the Commander, U.S. Army Personnel Center, Hawaii, reduced the applicant to private (E-1), effective 20 December 1972, based on his separation action from the service with an Undesirable Discharge.

6.  Headquarters, U.S. Army Personnel Center, Hawaii, Special Orders Number 249, dated 26 December 1972, discharged the applicant from the Army under the provisions of Army Regulation 635-200 (Enlisted Separations - Enlisted Personnel), chapter 10, for the good of the service with an Undesirable Discharge Certificate, effective 27 December 1972.

7.  The applicant's DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) shows he was discharged on 27 December 1972 in accordance with Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial with an undesirable discharge.  He completed 1 year, 3 months, and 24 days of active service.

8.  A review of the applicant's military personnel records failed to reveal any evidence the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  In support of his application, the applicant provides a letter from his medical doctor, Treva J. G----, dated 23 October 2011, that states the applicant has several medical problems that will require treatment for the rest of his life, including chronic obstructive pulmonary disease (a common lung disease that makes it difficult to breathe), hepatitis C, migraine headaches, hypertension, depression, chronic methicillin-resistant staphylococcus aureus (a "staph" germ that does not get better with first-line antibiotics that usually cure staph infections), and overuse of tobacco.  The doctor concludes that whether or not any of the conditions are related to time the applicant spent in the Armed Forces would require research and he defers on the matter.

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

  	a.  Chapter 10 provides that a member who 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, at the time the applicant was discharged an undesirable discharge was considered appropriate.

	b.  Chapter 3, 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.  Chapter 3, 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 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR.  The regulation provides that the ABCMR 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 his undesirable discharge should be upgraded to an honorable discharge because he was immature and he has paid his dues for his mistake.

	a.  Considering the applicant satisfactorily completed training and was awarded MOS 11B, his contention that he was immature is not supported by the evidence of record.  He was no younger than other Soldiers who completed their military obligation.

	b.  Records show the applicant had a total of 128 days of lost time and he completed less than half of his 3-year enlistment obligation.

	c.  Neither the applicant's contentions nor the letter that was provided are sufficient to mitigate his misconduct or support an upgrade of his discharge.

2.  The regulations governing the Board's operation require that the discharge process must be presumed to have been in accordance with applicable law and regulations unless the applicant can provide evidence to overcome that presumption.  Therefore, considering all the facts of this case and in the absence of evidence to the contrary, the type of discharge and narrative reason directed appear to have been, and still are, appropriate.

3.  Thus, the applicant's service during the period under review clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel and he is not entitled to an honorable or general discharge.  

4.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20120001215



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ABCMR Record of Proceedings (cont)                                         AR20120001215



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