RECORD OF PROCEEDINGS


	IN THE CASE OF:	  


	BOARD DATE:	  6 March 2008
	DOCKET NUMBER:  AR20070016373 


	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.


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	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 under other than honorable conditions (UOTHC) discharge be upgraded to a general or honorable discharge.

2.  The applicant states that he was told that his discharge would be automatically upgraded after two years.

3.  The applicant provides no additional documents 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 enlisted in the Regular Army on 27 July 1977 for a period of three years.  He completed basic combat training and advanced individual training and was awarded military occupational specialty 76Y (supply clerk).  He was advanced to private first class on 1 June 1978.

3.  On 1 February 1979, the applicant was convicted by a special court-martial of two specifications of committing assault.  He was sentenced to a reduction to private, E-1; a forfeiture of $100.00 pay for 2 months; confinement at hard labor for 10 days; restriction for 20 days; and extra duty for 20 days.  

4.  On 29 June 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) for three specifications of failing to go to his appointed place of duty.  His punishment consisted of a forfeiture of $50.00 pay for one month.  

5.  On 19 February 1980, the applicant was convicted by a summary 
court-martial of three specifications of failing to go to his appointed place of duty. He was sentenced to confinement at hard labor for a period of 21 days.  
6.  On 8 April 1980, the applicant accepted NJP under Article 15, UCMJ for failing to obey a lawful order.  His punishment consisted of a forfeiture of 
$25.00 pay for one month (suspended for 60 days) and 7 days extra duty.

7.  On an unknown date, the applicant was notified of pending separation action under the provisions of Army Regulation 635-200, paragraph 14-33b(1) due to misconduct - frequent incidents of a discreditable nature with civil or military authorities.  He was advised of his rights.  

8.  The applicant acknowledged notification, consulted with legal counsel, waived a hearing by a board of officers, waived a personal appearance before a board of officers, and did not submit statements in his own behalf.

9.  The separation authority approved the separation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1) for misconduct - frequent incidents of a discreditable nature with civil or military authorities with issuance of an UOTHC Discharge Certificate. 

10.  The applicant was discharged on 30 April 1980 with a discharge UOTHC.  He completed 2 years, 8 months, and 9 days of active military service with 25 days of lost time due to confinement.  

11.  On 2 December 1981, the Army Discharge Review Board (ADRB) denied the applicant's request for an upgrade of his discharge.  

12.  Army Regulation 635-200, in effect at the time, 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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

13.  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.  
14.  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.

15.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant requests a change in discharge.  Changes may be warranted if the Board determines that the characterization of service or the reason for discharge or both were improper or inequitable.

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 service record shows he received two Article 15s, one special court-martial, and one summary court-martial.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for a general or honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as UOTHC.  

3.  Although the applicant contends that he was told that his discharge would be upgraded after 2 years, there is no policy or regulation within the Army which allows automatic upgrading of discharges.

4.  There is no evidence of record which indicates the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the applicant's request.  

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

x_____ x_____x______  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.



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          CHAIRPERSON


INDEX

CASE ID
AR20070016373
SUFFIX

RECON
YYYYMMDD
DATE BOARDED
YYYYMMDD
TYPE OF DISCHARGE
UOTHC
DATE OF DISCHARGE
19800430
DISCHARGE AUTHORITY
AR635-200, paragraph 14-33b(1)
DISCHARGE REASON

BOARD DECISION
(NC, GRANT , DENY, GRANT PLUS)
REVIEW AUTHORITY
Ms. Mitrano
ISSUES         1.
110.0000
2.

3.

4.

5.

6.