IN THE CASE OF:	

		BOARD DATE:	  13 May 2010

		DOCKET NUMBER:  AR20090016286 


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 and that the authority and reason for discharge be changed.  

2.  The applicant states he requested discharge from the Army as a staff sergeant (SSG) because his wife was on drugs and in and out of a mental hospital.  He claims he needed to take care of her and protect his kids.  He states his wife overdosed in 2007.  He finally indicates he committed no misconduct. 

3.  The applicant provides no documentary evidence in support of the 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 21 October 1970.  He was trained in, awarded, and served in military occupational specialty (MOS) 95B (Military Police), and SSG is the highest rank he attained while serving on active duty.  

3.  The record shows the applicant served in the Republic of Vietnam (RVN) from 1 April 1971 through 29 January 1972, and earned the following awards during his active duty tenure:  National Defense Service Medal (NDSM), Vietnam Service Medal (VSM), RVN Campaign Medal (RVNCM), Army Achievement Medal (AAM), Army Good Conduct Medal (4th Award), Army Service Ribbon, Overseas Service Ribbon, Noncommissioned Officer Professional Development Ribbon, Expert Marksmanship Qualification Badge with Pistol Bar (.38 Caliber), Sharpshooter Marksmanship Qualification Badge with Rifle Bar, Marksman Marksmanship Qualification Badge with Pistol Bar (.45 Caliber), and 1 Overseas Service Bar.  

4.  The applicant's disciplinary history includes acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 22 December 1982, for willfully and wrongfully being in the barracks room of a female private and fraternizing and associating with a junior enlisted woman assigned to his squad directly under his supervision.  

5.  On 7 November 1985, the unit commander notified the applicant he was initiating action to separate him from the Army.  The commander cited the basis for taking the action was the applicant's commission of a serious offense and pattern of misconduct involving two assaults consummated by batteries upon his wife for which he was confined by civil authorities and pending judicial action.  

6.  The applicant consulted with legal counsel and was advised of the basis for the contemplated separation action, its effects, the rights available to him and the effect of a waiver of those rights.  Subsequent to receiving this legal counsel, the applicant waived his right to consideration of his case by a board of officers, personal appearance before a board of officers, and he elected not to submit statements in his own behalf.  

7.  On 9 December 1985, the separation authority directed that the applicant be reduced to the lowest enlisted rank and separated under the provisions of chapter 14, Army Regulation 635-200 with a UOTHC discharge.  On 
17 December 1985, the applicant was discharged accordingly.  


8.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he was discharged under the provisions of paragraph 14-12c, Army Regulation 635-200, by reason of commission of a serious offense, and received a UOTHC discharge.  It also shows at the time of his discharge he had completed 12 years, 11 months, and
6 days of active military service.  

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board's 15-year statute of limitations.

10.  Army Regulation 635-200 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 a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  A general, under honorable conditions discharge (GD) may be directed by the separation authority 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.  

   a.  Paragraph 3-7a of the same regulation states an HD is a separation with honor and entitles the recipient to benefits provided by law.  It further states an HD 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.  
   
   b.  Paragraph 3-7b states 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 discharge should be upgraded and the reason and authority changed because his wife was on drugs and he felt he needed to protect his kids has been carefully considered.  However, the evidence does not 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 the rights of the applicant were fully protected throughout the separation process.  

3.  The applicant's record reveals a significant disciplinary history that includes his acceptance of NJP for fraternization with a junior female Soldier under his direct supervision and multiple assaults on his wife.  Given the gravity of his offenses, his discharge was appropriate and his overall record of service did not support the issuance of a GD or an HD at the time of discharge, nor does it support an upgrade of his discharge 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)                                         AR20090016286



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ABCMR Record of Proceedings (cont)                                         AR20090016286



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