IN THE CASE OF:	  

		BOARD DATE:	       24 July 2008

		DOCKET NUMBER:  AR20080006095 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests that his discharge under other than honorable conditions (UOTHC) be upgraded to general under honorable conditions.

2.  The applicant makes no additional statement.

3.  The applicant provides the front page of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 15 August 1979.  He completed basic training and advanced individual training and was awarded military occupational specialty 13B (Cannon Crewman).
3.  On 4 February 1980, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being absent without leave (AWOL) from on or about 3 January 1980 to on or about 10 January 1980.

4.  On 21 May 1981, the applicant was convicted, contrary to his plea, by a summary court-martial of being AWOL from on or about 22 April 1981 to on or about 13 May 1981.  His approved sentence was to be reduced to pay grade    E-1, to forfeit $250.00 pay per month for one month (suspended for six months), and to be confined at hard labor for 30 days.

5.  On 29 June 1981, the applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for being AWOL from on or about 20 June 1981 to on or about 24 June 1981.

6.  On an unknown date, while at the U. S. Army Retraining Brigade, Fort Riley, KS, action was initiated to separate the applicant under the provisions of Army Regulation 635-200, chapter 14, for misconduct – frequent involvement in incidents of a discreditable nature with civil or military authorities.  

7.  On 2 July 1981, 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, waived appearance before such a board, and waived consulting counsel.  He did not submit any statement on his behalf.

8.  The applicant was formally recommended for discharge.  The reasons cited were the applicant’s two Article 15s and his one summary court-martial.  It was noted that the applicant had been sent to the Retraining Brigade for the purpose of receiving correctional training and treatment necessary to return him to duty.  However, his actions since arrival precluded accomplishment of the objective as evidenced by his resumption of behavior, attitude, and ability (that led to his being sent there).  

9.  On 7 July 1981, the applicant completed a mental status evaluation.  No significant mental illness was found.  He was found to be mentally responsible, able to distinguish right from wrong and to adhere to the right, and to have the mental capacity to understand and participate in board proceedings.

10.  On 7 July 1981, the applicant indicated that he did not desire a separation medical examination.

11.  On 15 July 1981, the appropriate authority approved the recommendation to separate the applicant and directed he be furnished an UOTHC Discharge Certificate.
12.  On 17 July 1981, the applicant was discharged, with a discharge UOTHC, in pay grade E-1, under the provisions of Army Regulation 635-200, chapter 14, for misconduct, frequent involvement in incidents of a discreditable nature with civil or military authorities.  He had completed 1 year, 9 months, and 12 days of creditable active service and had 50 days of lost time.

13.  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 (at the time this included frequent involvement in incidents of a discreditable nature with civil or military authorities), 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.  

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.

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.  Considering the overall quality of the applicant’s record of service, the characterization of his discharge as UOTHC was and still is appropriate.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___xx___  ___xx___  ___xx___  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.



      _______xxxxx___________
      		CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20080006095



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ABCMR Record of Proceedings (cont)                                         AR20080006095



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