IN THE CASE OF:	  

		BOARD DATE:	  19 November 2009

		DOCKET NUMBER:  AR20090010914 


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 to an honorable discharge (HD).

2.  The applicant states, in effect, that his discharge was based on a few isolated incidents and does not reflect his entire period of service.  He further states that his discharge should be upgraded to reflect his overall record of service.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), dated 16 October 1980, 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 initially enlisted in the Regular Army and entered active duty on 4 October 1976.  He served for a period of 2 years, 9 months, and 26 days until being honorably discharged on 29 July 1979 for the purpose of reenlistment.  On 30 July 1979, the applicant reenlisted for a period of 3 years and entered the period of service under review.

3.  The applicant's record shows he was trained in, was awarded, and served in military occupational specialty 71L (Administrative Specialist).  He was promoted to the rank of specialist four (SP4) on 31 October 1978, and this is the highest rank he attained while serving on active duty.  His record also shows he was reduced to private first class (PFC) for cause on 3 March 1980.

4.  The applicant's record shows that during his tenure on active duty he earned the Army Good Conduct Medal and Expert Marksmanship Qualification Badge with Rifle Bar.  His record documents no acts of valor or significant achievement.

5.  The applicant's disciplinary history includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following four separate occasions for the offenses indicated:  7 June 1978, for being derelict in the performance of his duties; 18 September 1979, for being absent without leave (AWOL) for 2 days; 4 March 1980, for failure to go at the prescribed time to his appointed place of duty; and 18 July 1980, for being AWOL for 4 days.

6.  On 17 April 1980, the unit commander prepared a Bar to Reenlistment Certificate on the applicant.  The reason cited for the action was the applicant's violation of Article 92 of the UCMJ by being derelict in his duties and violation of Article 86 of the UCMJ by being AWOL and for failing to repair.  The appropriate authority approved the bar to reenlistment; the applicant acknowledged receipt of the action and elected not to submit a statement in his own behalf.

7.  On 10 September 1980, the unit commander notified the applicant that he was initiating action to separate him under the provisions of paragraph 14-33b(1), Army Regulation 635-200 (Personnel Separations – Enlisted Separations), by reason of misconduct – frequent incidents of a discreditable nature with civil or military authorities.

8.  On 11 September 1980, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation, its effects, and of the rights available to him.  Subsequent to this counseling, the applicant waived his right to have his case considered by a board of officers, his right to a personal appearance before a board of officers, and his right to consulting counsel.  He elected to submit a statement in his own behalf; however, the statement is not on file in his record.

9.  On 23 September 1980, after review of the applicant's entire case file and after the applicant effectively waived consideration of his case by board of officers, the Judge Advocate General (JAG) office determined the separation action was administratively complete for final action by the general court martial convening authority (separation authority).  The JAG office further determined the evidence was legally sufficient to support discharge under the provisions of paragraphs 14-33b(1) and 14-33b(3), Army Regulation 635-200, and that a UOTHC discharge was appropriate in the applicant's case.

10.  On 8 October 1980, the separation authority approved the separation action and directed the applicant receive a UOTHC discharge.  On 16 October 1980, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he was discharged in the rank of private/E-1 under the provisions of paragraph 14-33b(1), Army Regulation 635-200, by reason of misconduct –frequent incidents of a discreditable nature with civil or military authorities.  It also shows that he had completed a total of 4 years, 4 months, and 15 days of creditable active military service and had accrued 15 days of time lost due to AWOL during the period covered by the DD Form 214.

11.  On 30 June 1983, the Army Discharge Review Board, after careful consideration of the applicant's military records and all other available evidence, determined that he had been properly and equitably discharged and voted to deny his request for a change to the characterization of his service and/or to the reason of his separation.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is normally considered appropriate for members separated under these provisions of the regulation.  The separation authority may authorize a general under honorable conditions discharge (GD) or HD if warranted based on the member's overall record of service.

13.  Paragraph 3-7a of Army Regulation 635-200 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 or is otherwise so meritorious that any other characterization would be clearly inappropriate.

14.  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 was based on a few isolated incidents and does not accurately reflect his entire record of military service and therefore should be upgraded was carefully considered.  However, there is insufficient evidence to support this claim.

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 his rights were fully 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 NJP on four separate occasions for several separate acts of misconduct.  It also shows he accrued 15 days of time lost due to AWOL during the enlistment under review.  As a result, the applicant's discharge accurately reflects his overall record of service and did not support the issuance of a GD or HD by the separation authority at the time of discharge, nor does it support an upgrade of his discharge at this late date.  As a result, there is an insufficient evidentiary basis to support granting the requested relief.

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)                                         AR20090010914



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ABCMR Record of Proceedings (cont)                                         AR20090010914



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