IN THE CASE OF:	  

		BOARD DATE:	  9 June 2009

		DOCKET NUMBER:  AR20090001462


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 his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he is a role model who needs a chance to provide for his family.  He states he had never been in trouble while he was in the military, but during POR (Preparation of Replacements for Overseas Movement) processing, he left his weapon unsecured because his wife was having a baby.

3.  The applicant provides:

	a.  a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty);

	b.  a copy of an employee evaluation, dated “12-17-03;”

	c.  a 15 December 2008 reference from his employer; and

	d.  eviction documents.

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 for 3 years on 30 April 1980.  He completed basic training at Fort Dix, NJ and advanced individual training at Fort Lee, VA.  He was awarded military occupational specialty (MOS) 76C (Equipment Records and Parts Specialist) and sent to Fort Carson, CO for his first permanent duty assignment.

3.  The available evidence contains four records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

	a.  breach of the peace by fighting, on 27 August 1980, for which he received a forfeiture of $75 pay per month for 1 month, and 8 days of restriction and extra duty;

	b.  dereliction of duty by failing to secure his M16A1 rifle, on 28 January 1981, for which he received a forfeiture of $135 pay per month for 1 month, and 14 days of restriction and extra duty;

	c.  willfully disobeying a lawful order to sign for his weapon and perform guard duty, on 21 February 1981, for which he received reduction to private (PV2/E-2), 14 days of extra duty, and a suspended forfeiture of $130 pay; and

	d.  being out of uniform, making a false official statement to a military policeman, and dereliction of duty on 10 April 1981, for which he received a reduction to private (PV1/E-1), a forfeiture of $250 pay per month for 2 months, and 45 days of restriction and extra duty.

4.  The applicant’s records also show negative counseling statements for being absent from his place of duty in order to get married, for failure to pay just debts, issuing worthless checks, failure to support his wife, and for being absent without leave for 8 days.  On 6 May 1981, he was given a local bar to reenlistment.

5.  The applicant’s commander decided to separate the applicant for misconduct under the provisions of chapter 14, Army Regulation 635-200.  He notified the applicant, who then consulted with legal counsel concerning the effects of a chapter 14 discharge and the rights available to him.  On 18 June 1981, the applicant acknowledged having consulted with counsel, waived his rights, and declined to provide a statement in his own behalf.

6.  On an unknown date, the discharge approval authority approved the applicant’s separation action and directed the issuance of an UOTHC discharge.  The applicant was placed on excess leave pending his final discharge.

7.  On 14 October 1981, the applicant was separated for misconduct – frequent incidents of a discreditable nature with civil or military authorities under the provisions of paragraph 14-33b(1), Army Regulation 635-200 and issued an UOTHC discharge.

8.  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.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

9.  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.

10.  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 contends that his discharge should be upgraded because he was involved in only one incident, when he left his M1A1 rifle unsecured.  He also contends that he has been a role model citizen in civilian life.

2.  The applicant served less than 18 months of active duty.  During that time, he received NJP on four occasions, and he also received negative counseling statements for a variety of issues – including failure to pay debts – and a local bar to reenlistment.  His military record was decidedly unacceptable; therefore, he is not entitled to an honorable or a general discharge.

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)                                         AR20090001462



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090001462



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1