IN THE CASE OF:	

		BOARD DATE:	       6 AUGUST 2009

		DOCKET NUMBER:  AR20090004531 


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 a general under honorable conditions discharge (GD).

2.  The applicant states, in effect, that he doesn't believe an error in judgment he made at 19 years of age should be impacting him the way it is at 51 years of age. He claims that because he did not fit in, he was pressured to take the UOTHC discharge and he had no one to give him proper guidance that would have prevented him from making a mistake that would affect him for the rest of his life.

3.  The applicant provides no documentary evidence 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 record shows he enlisted in the Regular Army and entered active duty on 28 June 1976.  He was trained in, awarded, and served in military occupational specialty 11B (Light Weapons Infantryman).

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that he attained the rank of private/E-2 (PV2) on 6 January 1977 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 private/E-1(PV1) on 29 July 1977.  His record documents no acts of valor or significant achievement.

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 on the following four separate occasions for the offenses indicated:  3 December 1976, for wrongful possession of marijuana; 17 March 1976, for failing to go at the prescribed time to his appointed place of duty; 12 May 1977, for failing to go at the time prescribed to his appointed place of duty and for breaking restriction; and 30 August 1977, for failing to go at the time prescribed to his appointed place of duty.

5.  A DA Form 2-2 (Insert Sheet to DA Form 2-1) shows that on 27 July 1977 a summary court-martial (SCM) convicted the applicant of being disrespectful to his superior noncommissioned officer on or about 13 June 1977.  The resultant sentence was a reduction to PV1, forfeiture of $248.00, and hard labor without confinement for 45 days.

6.  The applicant's record contains three counseling statements, dated 22 March 1977, 27 June 1977, and 3 August 1977, which show he was counseled for extra duty violations, missing formation, failing to secure his field equipment, and a possible elimination action.

7.  On 31 August 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 (Personnel Separations), by reason of misconduct.  He cited the applicant's NJP record, his failure to respond to counseling, and his SCM conviction as the basis for taking the action.  The commander further indicated that efforts to improve the applicant's service were fruitless and he requested a waiver of the rehabilitation transfer requirement.

8.  On 31 August 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, the applicant elected to waive consideration of his case by an appearance before a board of officers and representation by counsel.  He also elected to submit a statement in his own behalf.  In his statement, the applicant indicated that he was unable to adapt to Army life and admitted that he began getting into trouble at the onset of his assignment to his unit.  He stated that he straightened out; however, continual harassment against him caused him to get in trouble again.  He further stated that he knew that he could not do his job as a Soldier and that he had to get out of the Army.  He requested he be given a GD because he did not deserve a UOTHC discharge.

9.  On 14 October 1977, the separation authority approved the applicant's separation under the provisions of paragraph 13-5(a)1 and 13-17e, Army Regulation 635-200, and directed the applicant receive a UOTHC discharge.  On 20 October 1977, the applicant was discharged accordingly.

10.  The DD Form 214 (Report of Separation from Active Duty) issued to the applicant on 20 October 1977, the date of his separation, shows he was discharged from the Army under the provisions of paragraph 13-5a(1) and
13-17e, Army Regulation 635-200.  It also shows that he completed a total of 1 year, 3 months, and 23 days of creditable active military service.

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

12.  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.)  A UOTHC discharge was normally appropriate for members discharged for misconduct; however, the separation authority could grant a GD or honorable discharge (HD) if warranted by the member's overall record of service.

13.  Paragraph 3-7a of the enlisted separations regulation provides that an HD 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.

14.  Paragraph 3-7b of the same regulation provides that a GD 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 a GD because he should not continue to suffer from an error in judgment that he made over 31 years ago was carefully considered.  However, 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 the rights of the applicant were fully protected throughout the separation process.  It further reveals that the applicant, after consulting with counsel and being fully advised of his rights and of the ramifications of receiving an UOTHC discharge, elected to waive consideration of his case by an administrative separation board.  As a result, there is no evidence to support the applicant's assertion that he was not properly counseled. 

3.  The applicant's record documents no acts of valor or significant achievement. 
However, it does reveal an extensive disciplinary history that includes his acceptance of NJP on four separate occasions, three adverse counseling records, and an SCM conviction.  As a result, his record was not sufficiently meritorious to support the issuance 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.



      __________XXX_______________
                 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)                                         AR20090004531



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ABCMR Record of Proceedings (cont)                                         AR20090004531



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