IN THE CASE OF:
BOARD DATE: 18 March 2014
DOCKET NUMBER: AR20130012338
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 discharge under other than honorable conditions.
2. The applicant states he:
* wants to go back to school and needs a discharge upgrade
* was young and stupid
3. The applicant provides no additional documentary 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 was born on 25 December 1954. Having prior active service in the Regular Army (RA) from July 1972 to July 1974, he again enlisted on 28 May 1976 for a period of 4 years. He completed his training and he was awarded military occupational specialty 94B (cook). He was honorably discharged on
23 March 1978 for immediate reenlistment. He reenlisted on 24 March 1978 for a period of 6 years.
3. His record is void of the specific facts and circumstances surrounding his discharge action. However, his DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 9 April 1980 shows he was discharged under other than honorable conditions on 9 April 1980 under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations Enlisted Personnel), for the good of the service in lieu of trial by court-martial. He completed a total of 5 years, 10 months, and 5 days of creditable active service.
4. There is no evidence that shows the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
5. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. Chapter 10 provides that a member who has 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, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends he was young and stupid. However, age is not a sufficiently mitigating factor. He completed 2 years of service before he enlisted in the RA in 1976 at age 21. There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military term of service.
2. He wants his discharge upgraded so he can obtain educational benefits. However, a discharge is not changed for the purpose of obtaining Department of Veterans Affairs benefits.
3. In the absence of evidence to the contrary, it must be presumed that his separation processing was administratively correct and in conformance with applicable regulations. Without the discharge packet to consider, it is presumed the authority and reason for his separation was commensurate with his overall record of service.
4. In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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.
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