RECORD OF PROCEEDINGS


      IN THE CASE OF:


      BOARD DATE:        4 October 2007
      DOCKET NUMBER:  AR20070006766


      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:

|     |Ms. Susan A. Powers               |     |Chairperson          |
|     |Mr. Edward E. Montgomery          |     |Member               |
|     |Mr. Qawiy A. Sabree               |     |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).

2.  The applicant provides no statement or additional documentary evidence
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 21 January 1981, he enlisted in the
Regular Army and entered active duty.  He was trained in and awarded
military occupational specialty (MOS) 45K (Tank Turret Repairer).

3.  The applicant's record documents no acts of valor, significant
achievement, or service warranting special recognition.  The record reveals
a disciplinary history that includes a summary court-martial (SCM)
conviction and the applicant's acceptance of non-judicial punishment (NJP)
under the provisions of Article 15 of the Uniform Code of Military Justice
(UCMJ).

4.  On 27 April 1982, an SCM found the applicant guilty of violating
Article 134 of the UCMJ by being incapacitated for performance of duty.
The resultant sentence was reduction to private/E-1 (PV1), forfeiture of
2/3 pay, and confinement at hard labor for 30 days.

5.  On 28 June 1982, the applicant accepted NJP for the wrongful possession
of marijuana.  His punishment for this offense was a forfeiture of $100.00,
and
14 days of restriction and extra duty.

6.  On 30 June 1982, the unit commander notified the applicant of his
intent to initiate action to separate the applicant under the provisions of
chapter 14, Army Regulation 635-200, for misconduct.  The applicant
consulted with legal counsel and was advised of the basis for the
contemplated separation action, its effects, of the rights available to him
and of the effect of a waiver of those rights.  Subsequent to this
counseling, the applicant elected to waive his right to consideration of
his case by and personal appearance before a board of officers. He also
waived his right to representation by counsel, and elected not to submit a
statement in his own behalf.

7.  On 12 July 1982, the separation authority directed the applicant's
separation under the provisions of chapter 14, Army Regulation 635-200 and
that he receive an UOTHC discharge.  On 20 July 1982, the applicant was
discharged accordingly.  The separation document he was issued at the time
shows he completed a total of 1 year, 5 months, and 6 days of creditable
active military service and that he accrued 24 days of time lost due to
confinement.

8.  On 5 May 1995, after carefully considering the applicant's case, the
Army Discharge Review Board (ADRB) determined the applicant's discharge was
proper and equitable and it denied the applicant's request for an upgrade
of his discharge.

9.  Army Regulation 635-200 (Personnel Separations) 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, and convictions 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.  Although an honorable discharge (HD) or GD may be
issued by the separation authority if warranted by the member's overall
record of service, an UOTHC discharge is normally appropriate for a Soldier
discharged under this chapter.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request that his discharge be upgraded was carefully
considered.  However, the evidence of record confirms the applicant's
separation processing was accomplished in accordance with the applicable
regulation.  All requirements of law and regulation were met, and his
rights were fully protected throughout the separation process.

2.  Further, the applicant's discharge accurately reflected his overall
record of short and undistinguished service.  Given his extensive
disciplinary history, the applicant's record of military service was not
sufficiently meritorious for the separation authority to support an HD or
GD at the time, nor does it support an upgrade at this time.

3.  In order to justify correction of a military record the applicant must
show to the satisfaction of the Board, or it must otherwise satisfactorily
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

_SAP___  _EEM__  __QAS____  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.




                                     _Susan A. Powers_
                                            CHAIRPERSON



                                    INDEX

|CASE ID                 |AR20070006766                           |
|SUFFIX                  |                                        |
|RECON                   |                                        |
|DATE BOARDED            |2007/09/                                |
|TYPE OF DISCHARGE       |UOTHC                                   |
|DATE OF DISCHARGE       |1982/07/20                              |
|DISCHARGE AUTHORITY     |AR 635-200 C14                          |
|DISCHARGE REASON        |Misconduct                              |
|BOARD DECISION          |DENY                                    |
|REVIEW AUTHORITY        |                                        |
|ISSUES         1.  189  |110.0000                                |
|2.                      |                                        |
|3.                      |                                        |
|4.                      |                                        |
|5.                      |                                        |
|6.                      |                                        |


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