BOARD DATE: 23 August 2011 DOCKET NUMBER: AR20110001421 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 under other than honorable conditions discharge be upgraded. 2. He states at the time he was being considered for discharge he believes he was misled by his appointed counsel. He was a very young Soldier and made a poor choice. He adds he received the Army Good Conduct Medal (2nd Award) for 6 years of service. 3. He did not provide any additional documentation. 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. His record shows he was born on 30 July 1957, and he enlisted in the Regular Army, on 23 June 1975, at the age of 17 years, 10 months, and 25 days. After completion of training, he served in military occupational specialty 45K (Tank Turret Repairer). 3. His DA Form 2-1 (Personnel Qualification Record – Part II) shows the following: * Item 9 (Awards, Decorations and Campaigns) – does not record any special recognitions, acts of valor, or campaign credit * Item 18 (Appointments and Reductions) – shows his highest grade was sergeant/E-5 4. His record contains a DA Form 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)), dated 27 October 1981. This form shows he was administered non-judicial punishment (NJP) for stealing gasoline while stationed in Germany on 9 October 1981. 5. A separation packet containing the specific facts and circumstances surrounding the applicant’s separation processing is not in the available record. However, there is a separation order and a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) on file that identifies the authority and reason for discharge. 6. Orders 121-15, dated 12 January 1982, show the applicant was reassigned to the U.S. Army Separation Transfer Point and that he had an approved separation under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, in lieu of trial by court-martial and he was to be issued a DD Form 794A (Under Other Than Honorable Conditions – Discharge Certificate). 7. Accordingly, he was discharged under the provisions of Army Regulation 635-200, chapter 10, with an "Under Other than Honorable Conditions Discharge," on 18 January 1982, in the rank and pay grade of private, E-1. His DD Form 214 shows he had completed 6 years, 6 months, and 26 days of total active service. 8. There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations. 9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit, at any time after the charges have been preferred, a request for discharge for the good of the service, in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate, but the separation authority may direct a general discharge or an honorable discharge if such is merited by the Soldier's overall record and if the Soldier's record is so meritorious that any other characterization clearly would be improper. 10. Army Regulation 635-200, 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. 11. Army Regulation 635-200, 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 requested an upgrade of his discharge based on the fact that he was young and his appointed counsel may have misled him. 2. The evidence of record shows he was nearly 23 years of age at the time of discharge. He has not provided sufficient evidence to show he was any less mature than other Soldiers of his age who successfully and honorably completed their military service obligations. 3. Procedurally, a discharge under the provisions of chapter 10, Army Regulation 635-200, is a voluntary discharge, in lieu of trial by court-martial. The available evidence is void of a discharge packet containing the specific facts and circumstances concerning the events that led to the applicant’s discharge. However, there is a properly-constituted DD Form 214 on file. This document identifies the reason and characterization of his service. The separation document carries with it a presumption of Government regularity in the discharge process. 4. Absent evidence to the contrary, it is presumed that all requirements of law and regulation were met and the rights of the applicant were protected throughout the separation process. 5. In view of the foregoing, there is no basis to grant 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) AR20110001421 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20110001421 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1