BOARD DATE:	  21 November 2013

		DOCKET NUMBER:  AR20130006682 


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, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC).

2.  The applicant states he was a good Soldier.  He did not buck the system or give his superiors problems.  He liked the Army.  He had never gone anywhere until he joined the Army.  He got in with the wrong crowd and offered to help.  He was young and dumb.  The company bailed him out.  When he got back to the unit, all of his belongings were packed and they were ready to ship him to another permanent duty station to him help out of his mess.  He turned the offer down because he didn't think it was right to flee.  His commanding officer and supervisor gave him a good report for retention in the military instead of a discharge.  He made a mistake but has corrected his life.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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 19 February 1975, the applicant enlisted in the Regular Army at the age of 20 years and 2 months.  He completed his initial training and was awarded military occupational specialty 11D (Armor Reconnaissance Specialist).  He was subsequently assigned to Fort Bliss, TX, as a scout driver.

3.  On 1 October 1976, the applicant was advanced to the rank/pay grade of specialist four/E-4.

4.  On 17 December 1976, the applicant departed Fort Bliss, TX, for duty in Panama.  On 7 January 1977, he was assigned to Company C, 4th Battalion (Mechanized), 20th Infantry Regiment.

5.  The discharge packet is missing from the applicant's records.  However, his DD Form 214 shows he was administratively discharged on 25 November 1977 under the provisions of Army Regulation 635-206 (Personnel Separations – Discharge – Misconduct) by reason of conviction by civil authorities.  His service was characterized as UOTHC.  He completed 2 years, 5 months, and 24 days of creditable active duty service and had 103 days of lost time.

6.  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.

7.  Army Regulation 635-206, in effect at the time, set forth the basic authority for the separation of enlisted personnel due to civilian conviction.  It provided that members of the Armed Forces who were so separated normally received a UOTHC characterization of service.

8.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), currently in effect, sets policies, standards, and procedures to ensure the readiness and competency of the force while providing for the orderly administrative separation of Soldiers for a variety of reasons.

	a.  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.

	b.  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.

9.  Army Regulation 15-185 (Army Board for Correction of Military Records) 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 discharge UOTHC should be upgraded because he was young and made poor choices at the time.

2.  The available records do not contain any evidence of the misconduct that led to the applicant's civilian conviction and subsequent discharge.  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 and that the characterization of the discharge is commensurate with his overall record.  Furthermore, the applicant has not provided any substantiating evidence or convincing argument to support his contention that his discharge was unjust.

3.  The applicant's contention that he was young at the time is not sufficiently mitigating to warrant relief.  The applicant was over 20 years of age when he enlisted.  He satisfactorily completed training, attained the rank of specialist four, and served for almost 2 years before his assignment to Panama and his misconduct.  His prior satisfactory performance shows he was neither too young nor immature to serve honorably.

4.  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 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)                                         AR20130006682



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ABCMR Record of Proceedings (cont)                                         AR20130006682



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