IN THE CASE OF:	  

		BOARD DATE:	  9 September 2008

		DOCKET NUMBER:  AR20080010351 


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 an honorable discharge (HD) and his dates of service be checked for accuracy.

2.  The applicant states, in effect, that his UOTHC discharge was supposed to be upgraded to an HD six months after his discharge from the Army, and this was indicated in his original paperwork; however, he lost his original discharge papers, due to being robbed on his way home in 1983.

3.  The applicant provides a copy of his separation document (DD Form 214) 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's military records show he enlisted in the Regular Army and entered active duty on 12 November 1980.  He was trained in, awarded, and served in military occupational specialty (MOS) 12B (Combat Engineer).

3.  The applicant's Personnel Qualification Record (DA Form 2-1) shows, in Item 18 (Appointments and Reductions), that he attained the rank of private first class (PFC) on 12 November 1981, and that this is the highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank of private/E-1 (PV1) on 27 October 1982.  His record documents no acts of valor, significant achievement, or service warranting special recognition.

4.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following three separate occasions for the offense(s) indicated:  9 January 1981, for falling asleep on guard duty; 24 November 1981, for failing to go to his prescribed place of duty at the appointed time, and for disobeying a lawful order; and on 16 June 1982, for failing to go to the prescribed place of duty at the appointed time, and for being incapacitated to perform duties due to prior intoxication.

5.  On 24 September 1982, the applicant’s unit commander recommended he be barred from reenlistment based on his prior punishments under Article 15, and his lack of motivation and drive to progress in the military.  The bar was approved on 30 September 1982 

6.  An Insert Sheet to the applicant's DA Form 2-1 (DA Form 2-2) shows that on 27 October 1982, a Summary Court-Martial (SCM) convicted the applicant of being absent without leave from on or about 1 through 6 October 1982.  The resultant sentence included a reduction to PV1, forfeiture of $300.00, and 60 days restriction.

7.  The applicant's Official Military Personnel File (OMPF) contains six counseling records, dated from 14 July through 9 December 1982.  These documents show that the applicant was counseled on numerous occasions for disobeying lawful orders given by his superior noncommissioned officers (NCOs) and for a myriad of other disciplinary infractions that included being in the improper uniform; neglecting his responsibilities; failure to repair; being absent from formation; being late for duty; and for being unwilling to assist squad members with assigned tasks.  


8.  On 9 December 1982, the applicant’s unit commander notified the applicant that action was being initiated to separate him from the Army under the provisions of Chapter 14, Army Regulation 635-200 for misconduct.  

9.  On 9 December 1982, the applicant acknowledged receipt of the unit commander's separation action notification.  He consulted with legal counsel and was advised of the basis for the contemplated separation action, the effects of such a separation, the rights available to him, and the effect of any action taken by him in waiving his rights.  Subsequent to this counseling, the applicant elected to waive consideration of his case by an administrative separation board and representation by counsel. 

10.  On 10 January 1983, the separation authority approved the applicant’s separation under the provisions of chapter 14, AR 635-200, and directed he receive an UOTHC discharge.  On 9 February 1983, the applicant was discharged accordingly.  The separation document (DD Form 214) issued to the applicant at that time confirms he entered active duty on 12 November 1980 in Item 12a (Date Entered Active Duty), and Item 12b (Separation Date This Period) confirms he was discharged on 9 February 1983.  Item 12c shows he completed 1 year, 3 months and 28 days of active military service, and Item 29 (Dates of Time Lost During This Period) contains the entry “821001 - 821005" (5 days).  

11.  There is no evidence of record to show that the applicant ever petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitations.  

12.  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.  An UOTHC discharge is normally appropriate for members separated under these provisions.

13.  Army Regulation 635-5 (Separation Documents) prescribes the separation documents that must be prepared for Soldiers on retirement, discharge, release from active duty service, or control of the Active Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.


14.  Chapter 2 of the separation documents regulation contains item-by-item instructions for completing the DD Form 214.  The instructions for Item 12 (Record of Service) specifies that the following entries will be made in the Items indicated:  Item 12a will be the beginning date of the continuous period of active duty for issuance of this DD Form 214, for which a DD Form 214 was not previously issued; Item 12b will contain the Soldier's transition date, which may not be the contractual date if the Soldier is separated early, voluntarily extends or is extended for make up of lost time, or retained on active duty for the convenience of the Government; Item 12c will be the amount of service this period, computed by subtracting item 12a from 12b; and Item12d will be the total amount of prior active military service less loss time, if any from the previously issued DD Forms 214.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s contention that his UOTHC should be upgraded to an HD because he was informed his discharge would automatically be upgraded to an HD 6 months after his discharge was carefully considered.  However, there is insufficient evidence to support this claim.  

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 the rights of the applicant were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of undistinguished service. 

3.  The applicant is advised that the Army has never had a policy that allowed for the automatic upgrade of a discharge based on the passage of a specified period of time.  A discharge may be upgraded by either this Board, or the ADRB, if either board determines the discharge was improper or inequitable.  The record confirms the applicant failed to apply to the ADRB for an upgrade of his discharge within that board's 15-year statute of limitations, and this review has failed to produce evidence that his discharge was either improper or inequitable, or that any other error or injustice exists.  Therefore, there is an insufficient evidentiary basis to support an upgrade of his discharge at this time.

4.  The applicant's request that his dates of service be checked for accuracy was also considered.  His record and DD Form 214 confirm he entered active duty on 12 November 1980 and that he was discharged on 9 February 1983, and that he accrued 5 days of time lost between 1 and 5 October 1982, which must be deducted from active military service total.  As a result, the applicant completed a total of 2 years, 2 months, and 23 days of active military service, not 1 year,
3 months, and 28 days as indicated in Item 12c of his DD Form 214.  As a result, his record and separation document should be corrected accordingly.
BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

___x____  ___x____  ___x____  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

________  ________  ________  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

1.  The Board determined that the evidence presented was sufficient to warrant a recommendation for partial relief.  As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by amending Item 12c of his DD Form 214 to delete the current entry and replace it with the entry “02 02 23”; and by issuing him a correction to his separation document that reflects this change.  

2.  The Board further determined that the evidence presented is insufficient to warrant a portion of the requested relief.  As a result, the Board recommends denial of so much of the application that pertains to upgrading his under other than honorable conditions discharge. 




      _______ _   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)                                         AR20080010351



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ABCMR Record of Proceedings (cont)                                         AR20080010351


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