IN THE CASE OF:	  

	BOARD DATE:	  8 July 2008

	DOCKET NUMBER:  AR20080006421 


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, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded to either an honorable discharge (HD) or general, under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he wanted to join the United States 
Air Force (USAF), which he qualified for based on his test scores, but instead had to join the Army, which led him to feeling discriminated against.  He also states he was a productive Soldier and needed support he did not receive.

3.  The applicant provides no additional documentary evidence on 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 he enlisted in the Regular Army and entered active duty on 31 January 1979.  He successfully completed One Station Unit Training (OSUT) at Fort Leonard Wood, Missouri, and was awarded military occupational specialty (MOS) 51C (Structural Specialist) on 11 May 1979.  

3.  The applicant's record shows he was promoted to private/E-2 (PV2) on 
31 July 1979, and that this is the highest rank he attained while serving on active duty.  It also shows that during his active duty tenure, he received the Army Service Ribbon, Expert Marksmanship Qualification Badge with Rifle Bar, and the Sharpshooter Marksmanship Qualification Badge with Grenade Bar.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's record reveals an extensive disciplinary history that includes a Summary Court-Martial (SCM) conviction on 30 November 1979, and his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on at least two separate occasions in July 1979.   

5.  On 17 June 1980, the applicant departed absent without leave (AWOL) from his unit at Fort Knox, Kentucky.  He remained away for 425 days until returning to military control on 15 August 1981, at Fort Carson, Colorado.

6.  On 29 July 1982, the applicant was informed of his unit commander's intent to process him for separation under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct based on his being AWOL in excess of 1 year. 

7.  On 13 October 1982, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, and of the rights available to him and the effect of a waiver of those rights.  Subsequent to this counseling, the applicant elected to waive his rights to have his case considered by, and to a personal appearance before, a board of officers.  He also elected not to submit statements in his own behalf.  

8.  On 15 November 1982, the separation authority approved the applicant's discharge and directed the applicant receive an UOTHC discharge.  On 
1 December 1982, the applicant was discharged accordingly.  The separation document (DD Form 214) he was issued at the time shows he held the rank of private/E-1 (PV1) and that he had completed a total of 2 years, 5 months, and 
23 days of creditable active military service, and that he accrued 471 days of time lost due to AWOL and confinement.   

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 HD or a general, under honorable conditions discharge (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 because he was discriminated against by not being allowed to enlist in the USAF was carefully considered.  However, given the Army has no control over USAF enlistment criteria, and the evidence of record confirms the applicant voluntarily enlisted in the Regular Army, this factor is not sufficiently mitigating to support granting the requested relief.  

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

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

___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.



	_________x______________
      	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)                                         AR20080006421



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ABCMR Record of Proceedings (cont)                                         AR20080006421



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