DOCKET NUMBER:  AR20090006387 


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

2.  The applicant states that because of his age and severity of his sentence, he never had the opportunity to become the Soldier he truly wanted to be.  He adds that he made one serious mistake that changed his entire life forever.  He now needs his discharge upgraded to receive health care and educational benefits so he can continue to be a productive member of society.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) and a letter from the Department of Veterans Affairs (VA) which informed him that he was only entitled to medical care for service-related medical conditions.

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 that he immediately reenlisted in the Regular Army on 16 March 1978 with 1 year, 3 months, and 24 days of prior active service; that he served in the military occupational specialty of infantryman; and that he was assigned to Germany.

3.  Between 3 October 1978 and 1 March 1979, the applicant was counseled in writing nine times for failure to maintain himself in the proper uniform, failure to be at morning formation (he was found in bed apparently in a stupor from drinking intoxicating liquor the night before), failure to perform daily maintenance on his vehicle which resulted in his vehicle breaking down during a very crucial phase of a field training exercise, missing command reveille formation, failure to follow instructions, a very negative attitude, failure to follow instructions to take his helmet and protective mask to maneuvers, a second incident of failure to go to reveille formation, and disobeying a lawful order by drinking beer while on maneuvers.

4.  Between 8 December 1977 and 4 February 1979, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three occasions for dereliction in the performance of his duties, failure to go at the time prescribed to his appointed place of duty, and disobeying the lawful orders of his battalion commander and of a second lieutenant.

5.  On 16 June 1978, the applicant was convicted by a special court-martial of stealing two guitars at a value of about $600.00 and of unlawfully entering a store with intent to commit a criminal offense, to wit, larceny.  His sentence was a reduction to pay grade E-1 and a forfeiture of $262.00 pay for 6 months.

6.  On 30 March 1979, the applicant's commander notified him of his intent to recommend his separation due to misconduct and of his rights in conjunction with that recommendation.  The applicant waived his rights.  The applicant's commander then forwarded his recommendation to discharge the applicant and that recommendation was approved by the appropriate authority.

7.  Accordingly, on 11 May 1979, the applicant was discharged UOTHC.  He was 19 years old at that time.

8.  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, 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.  Paragraph 1-18 of that regulation specifies that Soldiers being considered for separation under the provisions of chapters 13, 14, and 15 are entitled to have a board of officers consider their cases unless that right is waived.

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.  Contrary to the applicant's contention that one serious mistake led to his UOTHC discharge, it was numerous acts of misconduct.  The applicant was counseled in writing nine times, he accepted NJP on three occasions, and he was convicted by a special court-martial.

2.  While the applicant was relatively young, he was no younger than other Soldiers who honorably completed their enlistments.  As such, his youth is not accepted as a matter of mitigation.

3.  The applicant's record of repeated, serious misconduct along with his refusal to follow orders and instructions certainly shows his service did not meet the standards of acceptable conduct and performance of duty for Army personnel.  As such, he is not entitled to either an honorable or general discharge.

4.  The Board does not upgrade properly-issued discharges to establish benefits from other agencies.


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)                                         AR20090006387



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ABCMR Record of Proceedings (cont)                                         AR20090006387



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