IN THE CASE OF:	  

		BOARD DATE:	  22 SEPTEMBER 2009

		DOCKET NUMBER:  AR20090007184 


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.

2.  The applicant states, in effect, that his discharge was too harsh given the nature of the offense involved.  

5.  The applicant provides no additional 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 that he enlisted in the Regular Army and entered active duty on 31 October 1979.  He was trained in and awarded military occupational specialty (MOS) 13B (Cannon Crewman).  

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 18 (Appointments and Reductions), that he was advanced to private/E-2 (PV2) on 30 April 1980, and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to private/E-1 (PV1) on 4 March 1981. Item 9 (Awards, Decorations & Campaigns) lists no earned awards and decorations and his record documents no acts of valor or significant achievement. 

4.  The applicant's disciplinary record includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 29 January 1981, and a SPCM conviction for violating Articles 108, 116, 117 and 134 of the UCMJ on 15 December 1980. 

5.  On 9 February 1981, the unit commander notified the applicant of his intent to initiate separation action on the applicant under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct (frequent incidents of a discreditable nature).  

6.  On 17 February 1981, 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 the effect of a waiver of those rights.  Subsequent to receiving this legal counsel, the applicant completed an election of rights in which he requested consideration of his case by a board of officers, personal appearance before a board of officers, and consulting counsel.  The applicant also elected not to submit statements in his own behalf.  

7.  On 20 March 1981, a board of officers convened to consider the applicant's elimination, with the applicant and his counsel present.  After carefully considering all the evidence before it, the board of officers found the applicant's misconduct was evidenced by his SPCM conviction, his having received NJP, and his numerous discreditable incidents recorded by his cadre at the retraining brigade.  Based on its findings, the board of officers recommended the applicant be eliminated from the service for misconduct and that he receive an UOTHC discharge.  

9.  On 30 March 1981, the separation authority approved the findings and recommendations of the board of officers in the applicant's case, and directed that the applicant be discharged under the provisions of paragraph 14-33b,
Army Regulation 635-200 with an UOTHC discharge.  On 6 May 1981, the applicant was discharged accordingly.  

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant on 6 May 1981, the date of his discharge, confirms he was separated, in the rank of PV1, under the provisions of paragraph 14-33b. Army Regulation 635-200, by reason of misconduct (Frequent involvement in incidents of a discreditable nature with civil or military authorities.  

11.  On 1 February 1983, the Army Discharge Review Board (ADRB), after reviewing the applicant's entire military record and the issues he raised, determined his discharge was proper and equitable, and it voted not to change either the characterization and/or reason for his discharge.   

12.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 6 June 2005, provides the current policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.  The regulation states, in pertinent part, that a discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record.  A characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated. 

13.  Army Regulation 635-200, paragraph 3-7a, provides that an HD 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.

14.  Army Regulation 635-200, paragraph 3-7b, 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.  An uncharacterized description of service is authorized only in cases of members in an entry level status (ELS), which is those cases when separation action is initiated within 180 days of a member entering active duty.  



DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that based on the related offense, his discharge was too harsh was carefully considered.  However, by regulation, an UOTHC is normally considered appropriate for members separated under the provisions of chapter 14, Army Regulation 635-200.  

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, which included consideration of his case by a board of officers, which resulted in a recommendation for his elimination from service with an UOTHC discharge. .  

2.  The applicant's record documents no acts of valor or significant achievement.  However, it does reveal a significant disciplinary history that includes his acceptance of NJP and his conviction by a SPCM.  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 is it sufficiently meritorious to support an upgrade of his discharge at this late date.  

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.




      _______ _   _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)                                         AR20090000789



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ABCMR Record of Proceedings (cont)                                         AR20090000789


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