IN THE CASE OF:	  

		BOARD DATE:	  22 December 2009

		DOCKET NUMBER:  AR20090008975 


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 to an honorable discharge.

2.  The applicant states that his discharge was due to his marital problems.  He contends that he would not have waived his rights to handle his situation with a separation from duty [military] if he had been given the proper advice.  

3.  The applicant provides no additional documents 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.  After having prior active service, the applicant enlisted in the Regular Army on 8 September 1977.  

3.  The applicant’s service personnel records contain a DA Form 3975 (Military Police Report), dated 17 March 1982, which shows he was involved in a domestic disturbance on 9 March 1982.

4.  The applicant was barred from reenlistment on 19 January 1983.  On various occasions between December 1982 and April 1983, the applicant received several adverse counseling statements regarding his conduct and duty performance.  

5.  On 20 April 1983, the applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice for being disrespectful in language toward his superior noncommissioned officer (NCO).

6.  On 28 April 1983, the applicant received a letter of reprimand for failure to maintain sufficient funds in his bank account for checks he had written.

7.  The applicant’s service records contain a DD Form 1569 (Incident/Complaint Report), dated 6 May 1983, which shows was involved in an alleged assault, disobeying a lawful order, and eluding apprehension.  

8.  On 12 May 1983, the applicant accepted NJP under Article 15 for making and uttering worthless checks, six specifications.  

9.  The applicant’s DA Form 2-1 (Personnel Qualification Record – Part II) shows he was absent without leave (AWOL) from 13 May 1983 through 15 May 1983.

10.  The applicant was confined by civil authorities from 18 May 1983 through 23 May 1983 for writing bad checks.  

11.  On 9 May 1983, the company commander notified the applicant of the proposed recommendation to discharge him under the provisions of Army Regulation 635-200, paragraph 14-12b for a pattern of misconduct.  He was advised of his rights.  

12.  The applicant acknowledged notification of separation action, consulted with legal counsel, waived consideration of his case by an administrative separation board, waived personal appearance before an administrative separation board, and did not submit statements in his own behalf.  

13.  On 24 May 1983, the separation authority waived rehabilitation requirements and approved the recommendation for discharge under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct – pattern of misconduct with issuance of a UOTHC discharge.

14.  His DA Form 2-1 shows he was also AWOL from 3 June 1983 through 23 June 1983.

15.  The applicant was discharged on 30 June 1983 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - pattern of misconduct.  He completed 5 years, 8 months, and 16 days of active military service with 30 days of lost time due to AWOL and civil confinement.  

16.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.  .

17.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  Chapter 14 established policy and prescribed procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, 
commission of a serious offense, and convictions by civil authorities.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A discharge UOTHC was normally appropriate for a Soldier discharged under this chapter.  However, the separation authority could direct a general discharge if such was merited by the Soldier’s overall record.  Only a general court-martial convening authority could approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

18.  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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.  

19.  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.  The applicant’s contention that his discharge was due to marital problems is noted.  However, marital problems are not normally grounds for upgrading a discharge.  There is no evidence the applicant sought assistance from his chain of command, chaplain, or any other community support agencies on a way to resolve his problems within established Army procedures.

2.  The applicant contends that he would not have waived his rights to handle his situation with a separation if he had been given the proper advice.  However, the evidence of record shows the applicant was appropriately counseled by legal counsel and advised of the effects of a UOTHC discharge.  He also was afforded the opportunity to submit statements in his own behalf, but he declined to do so.

3.  The applicant’s service record shows he received two Article 15s, a letter of reprimand, a bar to reenlistment, and adverse counseling statements.  Also, he was AWOL twice, was confined by civil authorities, and was involved in a domestic disturbance.  

4.  It appears the chain of command determined that the applicant's overall military service did not meet the standards for an honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as UOTHC.

5.  There is no evidence of record which indicates the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the applicant's request.  

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)                                         AR20090008975





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ABCMR Record of Proceedings (cont)                                         AR20090008975



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