RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        23 October 2007
      DOCKET NUMBER:  AR20070006416


      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             |
|     |Mr. Joseph A. Adriance            |     |Analyst              |

      The following members, a quorum, were present:

|     |Mr. Hubert O. Fry                 |     |Chairperson          |
|     |Mr. William Blakely               |     |Member               |
|     |Mr. Michael J. Flynn              |     |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 under other than honorable
conditions (UOTHC) discharge be upgraded to a general, under honorable
conditions discharge (GD) or honorable discharge (HD).

2.  The applicant states, in effect, during his discharge processing, he
and his commander decided he would receive a GD.  He claims to have left
the Army due to family hardship because he needed to be home to take
custody of his children.

3.  The applicant provides copies of his separation documents (DD Forms
214) in support of his application.

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's record shows that he initially enlisted in the Regular
Army and entered active duty on 30 July 1973.  On 23 May 1976, he was
honorably discharged for the purpose of immediate reenlistment.  The DD
Form 214 he was issued at the time shows he completed 2 years, 9 months and
24 days of active military service during the period.

3.  On 24 May 1976, the applicant reenlisted for 3 years.  His Personnel
Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and
Reductions), that he was promoted to specialist four (SP4) on 1 November
1974, and that this is the highest rank he attained while serving on active
duty.  It also shows that he was reduced to private first class (PFC) on 13
June 1977, promoted back to SP4 on 1 September 1977 and again reduced to
PFC on
5 January 1978.
4.  The applicant's record documents no acts of valor, significant
achievement or service warranting special recognition.  It does reveal a
disciplinary history that includes his acceptance of non-judicial
punishment (NJP) under the provisions of Article 15 of the Uniform Code of
Military Justice (UCMJ) on five separate occasions.

5.  On 11 June 1976, the applicant accepted NJP for wrongfully possessing
marijuana.  His punishment for this offense was a reduction to private/E-2
(suspended), forfeiture of $205.00, and 25 days of extra duty.

6.  On 18 January 1977, the applicant accepted NJP for possession of
marijuana. His punishment for this offense was a reduction to PFC
(Suspended), forfeiture of $106.00 (Suspended) and 14 days extra duty.

7.  On 26 May 1977, the applicant accepted NJP for being absent without
leave (AWOL) from 5 to 11 May 1977 and for failing to go to his appointed
place of duty at the prescribed time.  His punishment for these offenses
was a reduction to PFC, forfeiture of $106.00, and correctional custody for
21 days.

8.  On 5 January 1978, the applicant accepted NJP for two specifications of
failing to go to his appointed place of duty at the prescribed time.  His
punishment for these offenses was a reduction to PFC and 14 days of extra
duty.

9.  On 27 January 1978, the unit commander notified the applicant of his
intent to recommend the applicant be discharged under the provisions of
chapter 13, Army Regulation 635-200, by reason of unsuitability (apathy,
defective attitude, and inability to expend effort constructively), and he
advised the applicant of his rights in connection with the separation
action.

10.  On 3 February 1978, the applicant accepted NJP for two specifications
of failing to go to his appointed place of duty at the prescribed time and
wrongfully appropriating a field protective mask.  His punishment for these
offenses was
14 days of extra duty and restriction.

11.  On 16 February 1978, the applicant consulted with legal counsel and
was advised of the basis for the contemplated separation action, its
effects, and of the rights available to him.  Subsequent to this
counseling, the applicant completed an election of rights, in which he
waived his right to have his case considered by and personal appearance
before a board of officers.

12.  On 21 February 1978, the separation authority approved the applicant's
discharge under the provisions of chapter 13, Army Regulation 635-200 for
unsuitability and directed the applicant receive a GD.

13.  On 8 March 1978, the applicant was discharged under the provisions of
Paragraph 13-5b, Army Regulation 635-200, by reason of unsuitability, after
completing a total of 4 years, 6 months and 29 days of active military
service.

14.  Item 9e (Character of Service) of the DD Form 214 issued to the
applicant upon his discharge contains an entry that erroneously shows his
service was characterized as UOTHC.  Item 12f (Type of Discharge
Certificate Issued) correctly shows he was issued a DD Form 257A, which was
a General Discharge Certificate.

15.  Army Regulation 635-200, sets forth the basic authority for the
separation of enlisted personnel.  Chapter 13, in effect at the time,
provided for the separation of members for unsuitability and unfitness.
Members separated for unsuitability could receive either a GD or HD;
however, an UOTHC discharge was not authorized for members separating under
unsuitability provisions of the regulation.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to
either a GD or HD was carefully considered and found to have partial merit.


2.  The regulation in effect at the time authorized the issuance of either
a GD or HD for members being separated under unsuitability provisions of
the regulation.  The evidence of record confirms the separation authority
directed the applicant receive a GD and the DD Form 214 shows he was
appropriately issued a GD Certificate.  However, the DD Form 214 he was
issued contains an erroneous entry in Item 9e, which indicates his service
was characterized as UOTHC.  Therefore, it would appropriate to amend Item
9e by deleting the current entry and replacing it with the entry "Under
Honorable Conditions".

3.  The applicant's misconduct clearly diminished the quality of his
service below that meriting a fully honorable discharge.  Therefore, it
would not be appropriate to grant the portion of the requested relief that
pertains to an HD.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF

__HOF__  __WB ___  __MJF__  GRANT PARTIAL RELIEF

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to
warrant a recommendation for partial relief.  As a result, the Board
recommends that all Department of the Army records of the individual
concerned be corrected by amending his 8 March 1978 DD Form 214 by deleting
the current entry in Item 9e and replacing it with the entry "General,
Under Honorable Conditions"; and by providing him a correction to his
separation document that includes this change.

2.  The Board further determined that the evidence presented is
insufficient to warrant a portion of the requested relief.  As a result,
the Board recommends denial of so much of the application that pertains to
an upgrade of his discharge to fully honorable.




                                  _____Hubert O. Fry_______
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006416                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/10/23                              |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1978/03/08                              |
|DISCHARGE AUTHORITY     |AR 635-200 C13                          |
|DISCHARGE REASON        |Unsuit                                  |
|BOARD DECISION          |GRANT PARTIAL                           |
|REVIEW AUTHORITY        |Ms. Mitrano                             |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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