IN THE CASE OF:	

		BOARD DATE:	 22 April 2010 

		DOCKET NUMBER:  AR20090015578 


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 a general discharge (GD).

2.  The applicant states he received two previous honorable discharges and during his last period of enlistment he had some issues.  However, since he was discharged his life has changed and he is respectable.  He believes he did an outstanding job for the Army; however, he made some mistakes and he would like to have his discharge upgraded before he dies so he can be proud of his military service.

3.  The applicant provides no supporting documentation.

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 reenlisted in the Regular Army on 5 April 1983 with prior enlisted service from 16 August 1977 through 19 June 1980 and from 20 June 1980 through 4 April 1983.  The highest rank that he held was sergeant (E-5).

3.  During his third enlistment the applicant received nonjudicial punishment (NJP) under Article 15 of the Uniform Code of Military Justice (UCMJ) as follows: 

	a.  on 16 September 1983, for being absent from his place of duty; and

	b.  on 7 December 1983, for being absent from his place of duty.

4.  On 7 November 1984, he received a Letter of Reprimand for driving under the influence (DUI).

5.  On 10 December 1984, the applicant was barred from reenlistment based on his record of nonjudicial punishment, a letter of indebtedness, five negative counseling statements, and a Military Police Report.  The specifics of the Military Police Report are in the available record.  The bar was reviewed twice and continued on both occasions.

6.  On 21 December 1984 the applicant's on-base driving privileges were revoked due to an adjudication for DUI.  On 29 January 1985, the applicant received NJP for disobeying a lawful order by driving on a military instillation when his base driving privileges had been revoked.

7.  The applicant's official military record does not contain the specific facts concerning his separation processing.

8.  The applicant was discharged on 2 May 1985 under the provisions of Army Regulation 635-200, paragraph 14-12c for misconduct - commission of a serious offense.  

9.  There is no indication the applicant applied to the Army Discharge Review Board within its 15-year statutory limit for review.

10.  Army Regulation 15–185 (Army Board for Correction of Military Records (ABCMR)) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR.  Paragraph 2-9 states the ABCMR begins its consideration of each case with the presumption of administrative regularity.  The applicant has the burden of proving an error or injustice by a preponderance of the evidence.

11.  Army Regulation 635-200 sets forth the policies and procedures for enlisted personnel separations.  Chapter 3 outlines the criteria for characterization of service.  Paragraph 3-7b states that a GD is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.  Paragraph 3-7c states a UOTHC discharge is issued when there are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.  

12.  Army Regulation 635-200, chapter 14, establishes policy and prescribes procedures for separating members for misconduct.  Paragraph 14-12c provides for separation due to a pattern of misconduct, commission of a serious offense, conviction by civil authorities, absence without leave, or other actions that for which a punitive discharge may be authorized under the UCMJ.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he completed two honorable periods of service and he experienced some problems during his third period of service; however, he has changed and become a respectable person.  Even though he made some mistakes, his service was outstanding prior to his last period of service.

2.  All of the facts and circumstances concerning the applicant's discharge process are not available.  Based on the applicant's history of indiscipline and in the absence of evidence to the contrary administrative regularity is presumed in the discharge process.  

3.  During the applicant's third period of service he received three NJP's for various reasons, a Letter of Reprimand for DUI, a bar to reenlistment, a letter of indebtedness, and he disobeyed a lawful order by driving on a military base when his driving privileges had been suspended, which was serious misconduct. 

4.  The applicant's record does not contain any mitigating factors and the applicant did provide any to offset his bad behavior.  The applicant's post service behavior is insufficient to upgrade his discharge.

5.  In order to justify correction of a military record the applicant must show 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)                                         AR20090015578



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090015578



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1