RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  21 February 2008
	DOCKET NUMBER:  AR20070015101 


	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:


Ms. Margaret K. Patterson

Chairperson

Ms. Sherri V. Ward

Member

Mr. Jeffrey C. Redmann

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, or a medical discharge.

2.  The applicant states, in effect, that he served honorably from March 1976 to August 1979 and was honorably discharged.  He promptly reenlisted and was reassigned to Germany as the NBC (Nuclear, Biological, Chemical) specialist in the rank of sergeant (SGT/E-5).  At that time, he developed a substance abuse problem which led to cashing several personal checks without sufficient funds.  He was not afforded the chance for rehabilitation.  During his service, he was the distinguished honor graduate for PNCOC (Primary Noncommissioned Officers Course) and honor graduate from BNCOC (Basic NCO Course), both at Fort Campbell, KY.  He received several letters of commendations and all his evaluations were above average.  He was awarded the Air Assault Badge, the Expert Infantryman Badge, and the Good Conduct Medal.  

3.  The applicant provides no additional documentation 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's record shows he enlisted in the Regular Army on 12 March 1976, for 4 years, with an established expiration of term of service (ETS) of 11 March 1980.  He was trained as an Indirect Fire Infantryman, in military occupational specialty (MOS) 11C.  He was promoted to SGT/E-5 effective 11 July 1979.  He served until he was honorably discharged on 19 November 1979 for immediate reenlistment.   He reenlisted on 20 November 1979.


3.  On 8 January 1980, the applicant was punished under Article 15, UCMJ, for disobeying a lawful order from a noncommissioned officer and for using foul language.  His punishment consisted of a reduction to pay grade E-4, a forfeiture of pay, and 30 days restriction. 

4.  All the documents containing the facts and circumstances surrounding the applicant's discharge are not present in the available record.  However, the applicant's record contains a copy of his DD Form 214 which shows that on 16 July 1980, he was discharged, in pay grade of E-1, under the provisions 
of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial.  He was furnished an UOTHC discharge.  On the day of his discharge, he had a total of 6 years, 4 months, and 5 days of creditable service.

5.  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.  

6.  The applicant's medical records are unavailable for review.

7.  Army Regulation 635-200 sets forth the basic authority for 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 at any time, after the charges have been preferred, submit 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.

8.  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 record is void of facts and circumstances concerning the events that led to his discharge from the Army; however, the applicant's record contains a copy of his DD Form 214 he was issued on his separation.  This document lists the authority for his separation as Army Regulation 635-200, chapter 10, for conduct triable by court-martial 

2.  In the absence of evidence to the contrary, Government regularity is presumed. The applicant’s administrative separation was accomplished in compliance with applicable regulations, with no procedural errors, which would tend to jeopardize his rights.

3.  The applicant’s claim that he developed a substance abuse problem which led to cashing several checks without sufficient funds and was not offered the chance for rehabilitation was considered; however, his complete military records are unavailable for review to substantiate his claim.   

4.  The applicant’s accolades received while serving on active duty were considered; however, they do not support a change in his UOTHC discharge to a general discharge.

5.  The applicant's record does not contain any documentation, and the applicant submitted none, to show he was medically unfit while he was on active duty.  There is no evidence he was referred to either a medical or a physical evaluation board for an evaluation of his medical fitness.  As such, he could not have been separated due to a medical disability, with severance pay, or retired for disability reasons.  

6.  In view of the circumstances in this case, the applicant is not entitled to an upgrade of his UOTHC to a general discharge.  The applicant has submitted neither probative evidence nor a convincing argument in support of his request and has not shown error, injustice, or inequity for the relief, he now seeks 

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___MKP_  ___SW__  ___JCP__  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.




____Margaret K. Patterson_____
          CHAIRPERSON




INDEX

CASE ID
AR20070015101
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
20080221
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800716
DISCHARGE AUTHORITY
AR 635-200, chap 10
DISCHARGE REASON

BOARD DECISION
DENY
REVIEW AUTHORITY

ISSUES         1.
144
2.

3.

4.

5.

6.