RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  20 February 2008
	DOCKET NUMBER:  AR20070014154 


	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

Mrs. Nancy L. Amos

Analyst

The following members, a quorum, were present:


Mr. Patrick H. McGann

Chairperson

Ms. Eloise C. Prendergast

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 that his discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states that a lot of things in his life have changed.  He understands his mistakes and wishes he could change them.  All he can do is move on and make sure he does not make the same mistakes.

3.  The applicant provides no additional 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.  After having enlisted in the U. S. Army Reserve, for which he was discharged due to erroneous enlistment, the applicant enlisted in the Regular Army on        21 November 1989.  He completed basic training.

3.  On 26 June 1990, the applicant underwent a mental status evaluation.  The interview revealed he was experiencing severe adjustment difficulties to the military environment and was totally unwilling to adapt, change, or conform to military standards and requirements.  He was found to have the mental capacity to understand and participate in proceedings and was cleared for any administrative action deemed appropriate by his command.

4.  On 27 June 1990, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) from on or about 13 May to on or about 13 June 1990.

5.  On 5 July 1990, the applicant accepted NJP under Article 15, UCMJ for being AWOL from on or about 29 June to on or about 1 July 1990; for being drunk while on duty; for disobeying a lawful order; and for be being disrespectful in deportment towards a noncommissioned officer (NCO).

6.  On 9 July 1990, the applicant’s commander initiated separation action on the applicant under the provisions of Army Regulation 635-200, chapter 14 for a pattern of misconduct.  The commander noted that the applicant accumulated two AWOL charges, four academic failures, a drunk and disorderly charge, and a drunk on duty charge.  In addition, he was disrespectful to an NCO and he failed to follow instructions by an NCO.  He recommended the applicant receive a discharge UOTHC.

7.  On 9 July 1990, the applicant was advised by consulting counsel of the basis for the contemplated separation action.  He waived consideration of his case by a board of officers and appearance before such a board, waived consulting counsel, and elected not to submit a statement on his behalf.

8.  On 27 July 1990, the appropriate authority approved the request and directed the applicant receive a discharge UOTHC.

9.  On 3 August 1990, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for a pattern of misconduct.  He had completed 7 months and 13 days of creditable active service and had about 31 days of lost time.

10.  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, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed and an unfit medical condition is not the direct or substantial contributing cause of his misconduct.  A discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  

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

DISCUSSION AND CONCLUSIONS:

1.  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 applicant’s ability to change his life is admirable; however, considering his two Article 15s and his other infractions of military discipline, the characterization of his discharge as UOTHC was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

__phm___  __ecp___  __mjf___  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.




__Patrick H. McGann___
          CHAIRPERSON




INDEX

CASE ID
AR20070014154
SUFFIX

RECON

DATE BOARDED
20080220
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19900803
DISCHARGE AUTHORITY
AR 635-200, ch 14. . . . .  
DISCHARGE REASON
A60.00
BOARD DECISION
DENY
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.00
2.

3.

4.

5.

6.