RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  16 August 2007
	DOCKET NUMBER:  AR20070003161 


	I certify that hereinafter is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in the case of the above-named individual.


Ms. Catherine C. Mitrano

Director

Ms. Joyce A. Wright

Analyst

The following members, a quorum, were present:


Mr. William D. Powers

Chairperson

Mr. William Blakely

Member

Mr. Donald L. Lewy

Member

	The Board considered the following evidence:

	Exhibit A - Application for correction of military records.

	Exhibit B - Military Personnel Records (including advisory opinion, if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, that his discharge, characterized as under other than honorable conditions (UOTHC), be upgraded to a general discharge, under honorable conditions.

2.  The applicant states, in effect, that it is his belief that any and all judicial requirements were met by him in full and that he did not deserve a UOTHC discharge.  The applicant adds that he would like this upgrade so that he can qualify for medical benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) in support of his request.

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 is requesting correction of an alleged error or injustice which occurred on 29 August 1985, the date of his discharge.  The application submitted in this case is dated 22 February 2007 but was received for processing on 1 March 2007.

3.  The applicant's record shows he enlisted in the Regular Army on 24 August 1983.  The applicant successfully completed basic combat training and advanced individual training at Fort Knox, Kentucky.  On completion of his OSUT (one station unit training), he was awarded the military occupational specialty (MOS), 63N, M60A1/A3 Tank System Mechanic.  He was advanced to pay grade E-3 on 8 May 1984.


4.  On 16 May 1984, he received a summarized Article 15, under the Uniform Code of Military Justice (UCMJ), for being absent from his assigned place of duty.  His punishment consisted of 14 days restriction and extra duty on 10 May 1984.

5.  On 17 August 1984, he received a summarized Article 15, under the UCMJ, for being absent from his assigned place of duty on 1 August 1984.  His punishment consisted of 14 days restriction and extra duty. 

6.  On 26 February 1985, the applicant was punished under Article 15, under the UCMJ, for wrongful possession of marijuana, a controlled substance, on 12 February 1985.  His punishment consisted of reduction to pay grade E-1, a forfeiture of $300.00 per month for 2 months, and 45 days extra duty.

7.  On 26 March 1985, the applicant was barred from reenlistment due to his two summarized Article 15s, under the UCMJ, and a field grade Article 15 for possession of marijuana.  

8.  On 20 June 1985, the applicant appeared before a summary court-martial.  He was found guilty of being absent without leave (AWOL) from 3 May 1985 to 8 May 1985 and from 21 May 1985 to 23 May 1985.  His sentence consisted of confinement for 30 days and a forfeiture of $400.00 per month for 1 month.

9.  On 11 July 1985, the applicant's commander recommended that he be separated from the service under the provisions of Army Regulation 635-200, paragraph 14-12b, for misconduct-patterns of misconduct.  He based his reasons on the applicant's violations of the acceptable standards of personal conduct found in the UCMJ and his discreditable involvement with civilian and military authorities.  The applicant, the commander explained had received a summary court-martial for AWOL and the wrongful use of marijuana; Article 15, under UCMJ, for possession of marijuana; and two summarized Article 15s, for failure to be at his appointed place of duty.  The recommendation indicated that the applicant was to be processed for elimination for his second time drug offense, in accordance with regulation.  It also indicated that he had ample opportunities to change from judicial and non-judicial punishment, and had made no attempt to conform and become a productive Soldier.

10.  On 23 August 1985, the separation authority approved the recommendation for the applicant's discharge and directed that he be issued an UOTHC discharge.

11.  The applicant was discharged on 29 August 1985, under the provisions of Army Regulation 635-200, chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct.  He completed 1 year, 11 months, and 5 days of creditable service and had 31 days of lost time due to AWOL and confinement.

12.  There is no evidence that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor 
disciplinary infractions, a pattern of misconduct, commission of a serious offense, abuse of illegal drugs, and conviction 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.  

14.  The same regulation also states that Individuals identified as drug abusers may be separated prior to their normal expiration of term of service (ETS).  Individuals in pay grades E-5 and above must be processed for separation upon discovery of a drug offense.  All Soldiers must be processed for separation after a second offense. 

15.  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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

16.  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.  Whenever there is doubt, it is to be resolved in favor of the individual.



DISCUSSION AND CONCLUSIONS:

1.  It appears the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors, which would tend to jeopardize his rights.

2.  The type of discharge directed and the reasons therefore were appropriate
considering all of the facts of the case.

3.  The evidence of record shows the applicant was discharged under the provisions of Army Regulation 635-200, Chapter 14, paragraph 14-12b, for misconduct-pattern of misconduct.

4.  The applicant alleges that it is his belief that any and all judicial requirements were met by him in full and that he did not deserve an UOTHC discharge. 
As stated by his commander, it appears he had ample opportunities to change from the judicial and nonjudicial punishment that was administered to him and he made no attempt to conform and become a productive Soldier.  He provided no evidence to show that his discharge was unjust nor did he provide any evidence to mitigate the character of his discharge. 

5.  There is no evidence in the applicant's records, and the applicant has provided none, to show that he applied for an upgrade of his discharge to the ADRB within its 15-year statute of limitations.

6.  It is now apparent the applicant wants an upgrade of his UOTHC discharge to qualify for medical benefits; however he is advised that the Board does not change the character of service nor does it upgrade discharges for the purpose of enabling former service members to obtain eligibility for benefits.  

7.  In order to justify correction of a military record, the applicant must show, to the satisfaction of the Board, or it must otherwise appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.








BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__DLL __  __WDP__  __WB___  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.




_____William D. Powers____
          CHAIRPERSON




INDEX

CASE ID
AR20070003161
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20070816
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19850829
DISCHARGE AUTHORITY
AR 635-200, chap 14
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.