IN THE CASE OF:	  

		BOARD DATE:	  28 May 2009

		DOCKET NUMBER:  AR20090003214 


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 discharge (UOTHC) be upgraded to an honorable discharge (HD).

2.  The applicant states, in effect, that he was and still is a good Soldier and he outlines some of his military service history.  He also states that subsequent to his discharge, which was 3 months early, he was called to come back into the Army but it was too late.  He indicates his numerous attempts to get information about his discharge have been to no avail.  

3.  The applicant also requests information regarding a Servicemens’ Group Life Insurance (SGLI) policy and burial benefits.  He also indicates that his requests for medals have gone unanswered.  He finally states that he is not trying to cause trouble, but wants an upgrade of his UOTHC discharge to an HD and a copy of his discharge certificate.

4.  The applicant provides a self-authored statement and a copy of his
DD Form 214 in support of his request.

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.  Service medals and awards are not issued by the ABCMR.  The applicant may obtain his medals by submitting his request in writing to:  National Personnel Records Center, ATTN: Army Reference Branch, 9700 Page Boulevard, St. Louis, Missouri  63132-5200.  The National Personnel Records Center might also be able to address his request for his discharge certificate.  Further, the information regarding an SGLI policy and burial benefits should be addressed to the Department of Veterans Affairs (VA), which is the agency responsible for these matters subsequent to discharge.  The applicant should seek SGLI/VGLI information at http://www.insurance.va.gov/sgliSite/SGLI/SGLI.htm," the VA website for SGLI/VGLI, and contact the VA regarding burial benefits.  Given these matters are not within the purview of the Board, they will not be addressed further in these Proceedings.  

3.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 12 November 1973.  He was trained in, awarded, and served in military occupational specialty (MOS) 55B (Ammunition Storage Specialist).  

4.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments & Reductions), that he was advanced to the rank of specialist four (SP4) on 1 March 1975, and that this was the highest rank he attained and held while serving on active duty.  It also shows that he was reduced to the rank of private first class (PFC) on 21 June 1976 and to private/E-2 (PV2) on 17 December 1976.  Item 5 shows he served in Korea from 3 April 1974 to 
2 April 1975.  Item 9 (Awards, Decorations, and Campaigns) shows that he earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Armed Forces Expeditionary Medal (AFEM), and Sharpshooter Marksmanship Qualification Badge with Rifle Bar.  Item 21 (Time Lost (Sec 972, Title 10 U.S.C.)) [also known as Title 10, U.S. Code, section 972] shows he accrued a total of 24 days of time lost due to being absent without leave (AWOL) during the following three separate periods: 1 through 6 April 1976; 21 through 28 July 1976; and 1 through 10 December 1976.

5.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  The applicant's disciplinary history 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 six separate occasions for the offenses indicated:  12 June 1974, for failing to go at the prescribed time to his appointed place of duty; 25 January 1975, for disobeying a lawful order; 20 April 1976, for being AWOL; 15 July 1976, for failing to go at the time prescribed to his appointed place of duty; 17 December 1976, for being AWOL; and 10 January 1977, for reckless driving.

6.  On 13 January 1977, the unit commander informed the applicant that he was 
being considered for elimination from the service under the provisions of paragraph 13-5a(1), Army Regulation 635-200, by reason of misconduct.  He cited the applicant’s frequent incidents of a discreditable nature with civil or military authorities as the basis for his action.  

7.  On 11 February 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and of the effect of a waiver of those rights.  Subsequent to this counseling, he elected to waive consideration of his case by an appearance before a board of officers and representation by counsel.  He also elected not to submit a statement in his own behalf.

8.  On 3 March 1977, the separation authority approved the applicant’s separation under the provisions of paragraph 13-5(a)1, Army Regulation
635-200, by reason of frequent incidents of a discreditable nature with civil or military authorities, and directed the applicant receive an UOTHC discharge.  On 4 March 1977, the applicant was discharged accordingly.  

9.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant on 4 March 1977, the date of his separation, shows he was discharged from the Army under the provisions of paragraph 13-5a(1), Army Regulation 
635-200, by reason of misconduct (pattern of misconduct-frequent incidents of a discreditable nature with civil or military authorities).  It also shows that he completed a total of 3 years, 2 months, and 29 days of creditable active military service, and that he accrued 24 days of time lost due to AWOL.  

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for various acts of misconduct, which included patterns of misconduct (frequent incidents, shirking, failure to pay just 

debts, failure to support dependents, and maltreatment of spouse/child.  An UOTHC discharge was normally appropriate for members discharged for misconduct; however, the separation authority could grant a general, under honorable conditions discharge (GD) or HD if warranted by the member's overall record of service.  

12.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor.  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, or is otherwise so meritorious that any other characterization would be inappropriate.

13.  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 contention that his UOTHC discharge should be changed to an HD because was and still is a good Soldier 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.  

3.  The applicant’s record documents no acts of valor, significant achievement, or service warranting special recognition.  However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on six separate occasions.  As a result, his record was not sufficiently meritorious to support the issue of a GD or HD by the separation authority at the time of his discharge, nor does it support an upgrade at this late date.  Absent any evidence of any error or injustice related to his discharge processing, there is an insufficient evidentiary basis to support granting the requested relief in this case.  


4.  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)                                         AR20090003214



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ABCMR Record of Proceedings (cont)                                         AR20090003214



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