IN THE CASE OF:	  

		BOARD DATE:	  21 May 2009

		DOCKET NUMBER:  AR20090000684 


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).

2.  The applicant states, in effect, that his unaccompanied tour in Germany took a toll on his wife causing her to turn to alcohol and drugs.  He also indicates that after he returned to Fort Carson, Colorado, he experienced marital difficulty and his wife depleted his savings and departed to Ohio with his son.  He claims he followed his wife in an attempt to save his marriage and ensure his son’s safety. He states that prior to his discharge, he had no military infractions.  He was a model Soldier, he was placed in positions of responsibility beyond his rank, held a secret security clearance, and he was assigned as the S-3 in Operations.  He further claims that since his discharge, he also turned to alcohol and drugs, but he has since turned his life around and now helps others who suffer from these diseases.  He finally indicates that an upgrade of his discharge would allow him a greater opportunity to make a better life for himself.

3.  The applicant provides nine character reference statements and a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) 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 record shows he enlisted in the Regular Army and entered active duty on 24 July 1979.  He was trained in, awarded, and served in military occupational specialty (MOS) 19D (Cavalry Scout).

3.  The applicant’s DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he was promoted to private first class (PFC), on 24 July 1980, and that this was the highest rank he attained while serving on active duty.  It also shows he was reduced on three separate occasions and that his final reduction was to private (PV1)/E-1 on 24 June 1982.

4.  Item 9 (Awards, Decorations and Campaigns) of the applicant’s DA Form 
2-1 shows that he earned the Expert Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  

5.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  It does reveal 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:  8 June 1981, for failing to go to the prescribed place at the appointed time; 10 February 1982, for failing to go to the prescribed place at the appointed time; and 10 March 1982, for being absent without leave (AWOL) from on or about 26 February to 1 March 1982.

6.  The applicant’s record contains eight FORSCOM Forms 139-R (Statements of Counseling), dated between 10 August 1981 and 17 February 1982.  These documents show the applicant was counseled for a myriad of disciplinary infractions that include being AWOL, failure to repair, missing training and formations, writing bad checks, tardiness, poor attitude, and appearance.  

7.  On 28 March 1982, the applicant’s unit commander recommended the applicant be eliminated from the service under the provisions of chapter 14, Army Regulation 635-200.  He cited that the applicant’s continued absence from his place of duty and numerous bad checks as the basis for his recommendation.

8.  The applicant’s unit commander notified the applicant of his intent to process him for separation under the provisions of chapter 14, Army Regulation 635-200, by reason of frequent incidents of discreditable nature with military authority and an established pattern showing dishonorable failure to pay just debts.  The commander also indicated that the applicant could receive either a HD, general discharge (GD), or an UOTHC discharge.  

9.  On 21 April 1982, the applicant acknowledged receipt of his commander’s notification of intent of elimination action.

10.  On 22 April 1982, the applicant 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, personal appearance before a board of officers, and he elected not to submit a statement in his own behalf.  

11.  On 24 June 1982, the separation authority approved the applicant's separation under the provisions of paragraph 14-33b, Army Regulation 635-200, and directed the applicant receive an UOTHC discharge.  On 9 July 1982, the applicant was discharged accordingly.  

12.  The applicant’s DD Form 214 issued, on 9 July 1982, confirms he was discharged under the provisions of paragraph 14-13b(1), Army Regulation      635-200, by reason of misconduct (frequent incidents of a discreditable nature with civil or military authorities).  It also shows he held the rank of private on the date of discharge, that he had completed a total of 2 years, 11 months, and      13 days of creditable active military service, and that he accrued 3 days of lost time due to being AWOL. 

13.  The available evidence does not show the applicant has ever applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within the ADRB's 15-year statute of limitation.


14.  The applicant provides nine character reference statements from individuals who support his request for an upgrade of his UOTHC discharge and indicate he is a caring, giving, mature, responsible, dependable, and an understanding individual.  These individuals also state that the applicant has grown and maintained his own sobriety supporting and assisting other individuals while volunteering three to five times a week to assist and support members in the Alcoholics Anonymous Program. 

15.  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 UOTHC discharge is normally appropriate for a Soldier discharged under this chapter, the separation authority may issue a GD under honorable conditions discharge or HD if warranted by the member's overall record of service.  

16.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

17.  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 contentions that his UOTHC discharge should be upgraded to an HD due to personal problems that he was experiencing at the time, and due to the fact that he has turned his life around and become an asset to his community, were carefully considered and determined not to be sufficiently mitigating to warrant 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 the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant’s record reveals an extensive history of misconduct, as evidenced by his record of NJP and counseling.  It further shows that he failed to respond to disciplinary action and counseling and that he elected not to have his case considered by an administrative separation board prior to discharge.  As a result, it is concluded that his discharge accurately reflects his overall record of undistinguished service.  

4.  The applicant’s post service good conduct is commendable; however, his post service conduct alone is not sufficient to support an upgrade of his discharge at this late date.  His record documents no acts of valor, significant achievement, or service warranting special recognition and given his extensive disciplinary history, it is clear his overall record of service did not support the issuance of an HD or GD by the separation authority at the time of his discharge, nor does it support an upgrade now.  

5.  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)                                         AR20090000684



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090000684



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1