BOARD DATE:	  17 September 2009

		DOCKET NUMBER:  AR20090007440 


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 and that the medication he was given by the Army led him to behave inappropriately. 

3.  The applicant provides the following documents in support of his application:  DD Form 214 (Report of Separation from Active Duty); American Legion Letter, dated 17 April 2009; and a Department of Veterans Affairs (VA) Letter, dated 
23 March 2009.

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 records show he enlisted in the Regular Army and entered active duty on 17 August 1976.  He was trained in and awarded military occupational specialty (MOS) 63F (Recovery/Evacuation Vehicle Operator).  His record also shows the highest rank he attained while serving on active duty was private/E-2 (PV2). 

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows, in Item 9 (Awards and Decorations), that he earned no awards during his active duty tenure.  Item 21 (Time Lost) shows he accrued 116 days of time lost.

4.  On 10 May 1977, the applicant accepted non-judicial punishment (NJP) under the provisions of Article 15 of the UCMJ for being absent without leave (AWOL) from 23 through 25 April 1977.  His punishment for this offense was a reduction to private (PV1)/E-1 and a forfeiture of $50.00 pay.

5.  On 31 August 1977, a special court martial (SPCM) found the applicant guilty of violating Articles 91, 92, 121, 130, and 134 of the UCMJ.  The resulting approved sentence, as promulgated in Headquarters, 5th Infantry Division and Fort Polk, Louisiana SPCM Order Number 27, dated 29 November 1977, was a forfeiture of $245.00 per month for 4 months, confinement at hard labor for 
3 months, and a bad conduct discharge.  

6.  On 10 March 1978, the United States Army Court of Military Review, pursuant to Article 66 of the UCMJ, set aside the SPCM action taken by the Commander, 5th Infantry Division, Fort Polk, Louisiana, in SPCM Order Number 27, dated 
29 November 1977.

7.  In Headquarters, 5th Infantry Division and Fort Polk, Louisiana SPCM Order Number 51, dated 20 October 1978, the SPCM convening authority dismissed the charges against the applicant, and indicated the applicant's discharge request under chapter 10, Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) was approved on 14 June 1978.  

8.  On 5 July 1978, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) that he was issued shows he was separated under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service with an UOTHC discharge on 5 July 1978.  This document also confirms he completed a total of 1 year, 6 months, and 23 days of creditable active military service and that he accrued 116 days of lost time.  


9.  On 31 March 1980, the Army Discharge Review Board, after careful consideration of the applicant's military records and all other available evidence, determined that the applicant's discharge was proper and equitable and voted to deny his request for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part that a member who has committed an offense or offenses for which the authorized 
punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  The regulation does allow the issue of a GD, under honorable conditions or an honorable discharge (HD) if the separation authority determines it is warranted based on the member's overall record of service; however, an UOTHC discharge is normally considered appropriate for members separated under this provision of the regulation.  

11.  Paragraph 3-7a of the same regulation 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.  Paragraph 3-7b provides that a general discharge (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 (HD).  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 was too harsh and therefore it should be upgraded was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The evidence of record confirms the applicant's discharge 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, and was not sufficiently meritorious to support the issuance of an HD or a GD by the separation authority at the time of the applicant’s discharge, nor does it support an upgrade of his discharge at this time.  The applicant’s UOTHC discharge accurately reflects his overall record of service.   

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)                                         AR20090007440



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ABCMR Record of Proceedings (cont)                                         AR20090007440



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