BOARD DATE:	  27 October 2009

		DOCKET NUMBER:  AR20090009553 


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 to an honorable discharge.

2.  The applicant states, in effect, his family problems made it necessary for him to leave the military early and go home.  He claims to have discovered that his stepfather was accused of molesting his then baby sisters.  He further states his wife at the time had committed adultery and was expecting another man's baby.  He states that he requested leave to get his life straight at home, but this request was denied by his chain of command.  

3.  The applicant apologized for the things he did as a child and requested to be excused of his crimes that occurred more than 34 years ago so that he might receive benefits to aid in his support of his five children and 28 grandchildren he was left with upon the death of his current wife by cancer.  

4.  The applicant provides a self-authored statement and a Department of Veterans Affairs (VA) letter, dated 14 February 2009, 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 he enlisted in the Regular Army (RA) and he entered active duty on 7 February 1977.  He was trained in, awarded, and served in military occupational specialty (MOS) 94B (Food Service Specialist).  His DA Form 2-1 (Personnel Qualification Record) shows, in item 18 (Appointments and Reductions), that he attained the rank/grade of private (PV2)/E-2 on
11 August 1977 and that this was the highest rank he attained while serving on active duty.  It also shows that he was reduced to the rank/grade of private (PV1)/E-1 on 29 November 1977.  His record documents no acts of valor or significant achievement.

3.  The applicant's record reveals a disciplinary history that includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 28 July 1977, for being absent without leave (AWOL) from on or about 8 to on or about 12 July 1977.

4.  A DA Form 2-2 (Insert Sheet to DA Form 2-1) shows that on 29 November 1977, a Summary Court-Martial (SCM) convicted the applicant of six specifications of violating Article 92 of the UCMJ by violating a lawful regulation by purchasing exchange merchandise in excess of the prescribed limit while assigned for duty in Korea.  The resultant sentence was a forfeiture of $150.00 for one month and confinement at hard labor for 30 days.

5.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, it does include a duly-constituted DD Form 214 (Report of Separation from Active Duty) that confirms the authority and reason for his separation.  The DD Form 214 confirms that on 1 February 1978, the applicant was discharged with a UOTHC discharge under the provisions of paragraph 13-5a (1), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).  It also shows that he completed a total of 10 months and 26 days of creditable active military service and that he accrued 29 days of time lost.



6.  The applicant petitioned the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 20 April 2009.  However, he exceeded the ADRB's 15-year statute of limitations and his petition was forwarded to the ABCMR for consideration.

7.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided the authority for the separation of enlisted personnel for various acts of misconduct which included patterns of misconduct (frequent incidents, shirking, failure to pay just debts, failure to support dependents, and maltreatment of spouse/child.)  A UOTHC discharge was normally appropriate for members discharged for misconduct; however, the separation authority could grant a general, under honorable conditions discharge (GD) or honorable discharge (HD) if warranted by the member's overall record of service.

8.  Paragraph 3-7a of Army Regulation 635-200 provides that an HD is a separation with honor.  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 inappropriate.

9.  Paragraph 3-7b of Army Regulation 635-200 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 his UOTHC discharge should be changed to an HD because he was forced to go home to deal with his many family problems when his chain of command denied him leave and because he apologizes for his mistakes made more than 34 years ago was carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  The record is void of a discharge packet containing the specific facts and circumstances concerning the events that led to the applicant’s discharge.  However, there is a properly-constituted DD Form 214 that identifies the authority and reason for his discharge and this document carries with it a presumption of government regularity in the discharge process.  Lacking evidence to the 
contrary, it is concluded that all requirements of law and regulation were met and that the rights of the applicant were protected throughout the separation process.

3.  The applicant's record documents no acts of valor or significant achievement. However, it does reveal a disciplinary history that includes his acceptance of an NJP and an SCM conviction.  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 does it support an upgrade at this late date.

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)                                         AR20090009553



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ABCMR Record of Proceedings (cont)                                         AR20090009553



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