IN THE CASE OF:	  

		BOARD DATE:	  15 October 2009

		DOCKET NUMBER:  AR20090008772 


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, an upgrade of his under other than honorable conditions (UOTHC) discharge.  

2.  The applicant states, in effect, he entered the Army at age 17 and made some youthful mistakes, but he should have at least received a general discharge (GD) under honorable conditions.

3.  The applicant provides no documentary evidence in support of 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 enlisted in the Regular Army and entered active duty, on 18 September 1979, at 17 years and 7 months of age.  He successfully completed One Station Unit Training (OSUT) at Fort Gordon, Georgia and was awarded military occupational specialty (MOS) 36K (Field Wireman) on 17 December 1979.  Upon completion of training he was assigned to Korea on 4 January 1980.

3.  The applicant's record shows that he never advanced beyond the rank of private/E-1 (PV1) while serving on active duty.  His record documents no acts of valor or significant achievement.  

4.  The applicant's disciplinary history includes his acceptance of non-judicial punishment (NJP) on the following five separate occasions for the offenses indicated:  on 2 November 1979, for being disrespectful towards a noncommissioned officer (NCO); on 11 February 1980, for five specifications of being absent from his appointed place of duty without proper authority; on
17 April 1980, for being absent from his appointed place of duty without authority and for threatening an NCO; on 16 September 1980, for violating a lawful order, being disrespectful towards a commissioned officer, disobeying a lawful order from a commissioned officer, and resisting apprehension by a military policeman; on 13 October 1980, for being absent from his appointed place of duty without authority; and on 20 November 1980, for assault and disorderly conduct.

5.  On 31 October 1980, the applicant's commander notified the applicant that he was initiating action to effect the applicant's discharge from the Army under the provisions of paragraph 14-33b, Army Regulation 635-200, for misconduct.  The commander informed the applicant of his right to confer with counsel, to present his case before a board of officers, to submit statements in his own behalf, to be represented by legally qualified counsel, to waive these rights in writing, or to withdraw a waiver of rights at any time prior to the date of discharge. 

6.  On 31 October 1980, the applicant's commander also submitted a recommendation that the applicant be required to appear before a board of officers for the purpose of determining whether he should be discharged based on frequent incidents of a discreditable nature with military authorities, an apathetic attitude towards job performance, habitual shirking of duty, total disregard for authority and discipline, and for unwillingness to respond to counseling and corrective action.  He further indicated the applicant had been assigned to two different batteries in the battalion and served under different NCOs and officers and in each instance his performance of duty was unsatisfactory.  He also stated the applicant's military supervisors agreed that further rehabilitative efforts would be useless.  He finally cited the applicant's NJP record in support of his recommendation. 
7.  On 14 November 1980, the applicant acknowledged receipt of the commander's notification of his intent to initiate discharge action on the applicant.

8.  The available record is void of any additional separation documents to include the separation authority's approval.  The record does contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that identifies the authority and reason for the applicant's discharge.  The DD Form 214 on file confirms the applicant was discharged with an UOTHC discharge, under the provisions of paragraph 14-33b, Army Regulation 635-200, by reason of Misconduct (frequent incidents of a discreditable nature with civil or military authorities) on 28 January 1981.  It also shows that at the time of his discharge, the applicant held the rank of PV1 and had completed a total of 1 year, 4 months, and 11 days of creditable active military service.  

9.  There is no indication that the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.  

10.  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 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 honorable discharge (HD) may be approved only by the commander exercising general court-martial jurisdiction, or higher authority, unless authority is properly delegated. 

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.  


12.  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 he entered the Army at age 17 and made youthful mistakes but his record supported no less than a GD was carefully considered.  However, there is insufficient evidence to support this claim.  

2.  The applicant's record shows that although he had conduct issues, he successfully completed training and served for more than a year before committing the misconduct that led to his discharge, which is an indication that he was mature enough to serve satisfactorily if he had desired to do so.  

3.  A complete separation packet that contained the separation authority's approval is not on available; however, the record contains a properly constituted DD Form 214 that confirms the applicant was discharged under the provisions of paragraph 14-33b, Army Regulation 635-200, by reason of misconduct, and that he received a UOTHC discharge.  There is a presumption of government regularity attached to this document.  

4.  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 on five separate occasions and his failure to respond to rehabilitative efforts that included counseling and reassignment.  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.  

5.  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)                                         AR20090008772



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ABCMR Record of Proceedings (cont)                                         AR20090008772



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