IN THE CASE OF:	  

		BOARD DATE:	  25 February 2010

		DOCKET NUMBER:  AR20090016642 


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 honorable.

2.  The applicant provides no statement, but indicates his application should be considered based on his military personnel file and additional documentation he is submitting.

3.  The applicant provides an unsigned partial medical history document, dated 1 December 2005, and military medical 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.  The applicant's record shows he enlisted in the Regular Army and entered active duty on 2 January 1979.  He was trained in and awarded military occupational specialty 71L (Administrative Specialist).

3.  The applicant's record shows he was advanced to private (PV2)/E-2 on 2 June 1979 and that this is the highest rank he attained while serving on active duty.  It also shows he was reduced to private (PV1)/E-1 for cause on 29 May 1980, advanced again to PV2/E-2 on 2 April 1980, and reduced to PV1/E-1 for cause on 29 May 1980.

4.  The applicant's record shows that during his active duty tenure, he earned the Marksman Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.  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 two separate occasions for the offenses indicated:  22 October 1979 for willfully disobeying the order of a commissioned officer and 11 August 1980 for willfully disobeying the lawful order of a noncommissioned officer.

6.  The applicant's disciplinary history also includes a summary court-martial (SCM) conviction on 28 May 1980 for violating Article 91 of the UCMJ by being disrespectful in language and by disobeying a lawful order on 16 May 1980.  The resulting sentence included a reduction to PV1/E-1, forfeiture of one half of base pay for 1 month, and confinement at hard labor for 30 days.

7.  On 12 August 1980, the applicant's unit commander initiated action to separate him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of misconduct.

8.  On 14 August 1980, the applicant consulted with legal counsel and was advised of the basis of the contemplated action to accomplish his separation for misconduct under the provisions of chapter 14, Army Regulation 635-200, and its effects; of the rights available to him; and of the effect of any action taken by him in waiving his rights.  Subsequent to receiving legal counsel, the applicant completed an election of rights in which he waived his right to consideration of his case by a board of officers, his right to personal appearance before a board of officers, and his right to representation by counsel.  He also elected not to submit a statement in his own behalf.

9.  A DA Form 3947 (Medical Evaluation Board Proceedings) on file, which was approved on 19 August 1980, shows a medical board convened at Irwin Army Hospital, Fort Riley, Kansas, evaluated the applicant based on his diagnosed condition of pes planus.  The medical board determined the applicant's condition existed prior to service (EPTS) and was not aggravated by military service.  The medical board finally recommended the applicant be separated under the provisions of chapter 5, Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), based on an EPTS medical condition.

10.  The applicant requested to be discharged for physical disability based on the findings and recommendations of a medical board that he suffered from a disqualifying medical condition that was determined to have existed prior to his enlistment and which was neither incident to nor aggravated by his military service.

11.  On 21 August 1980, the applicant's request for discharge along with the medical board proceedings and record of physical examination were forwarded from the medical facility to the chain of command for appropriate action on the applicant's expeditious discharge request.

12.  On 17 September 1980, the applicant's defense counsel prepared a memorandum for record in which he confirmed he counseled the applicant concerning his pending chapter 14 discharge.  He further indicated he advised the applicant on the type of discharge he could expect to receive if he waived his right to present his case before a board of officers.  He also explained that although the hospital had recommended that he receive a chapter 5 discharge, the separation authority had the power to send his case to a board of officers for its recommendation.  He further stated the applicant maintained that all he wanted was to get out of the Army and that the type of discharge he would receive did not matter.

13.  On 18 September 1980, the separation authority non-concurred with the applicant's request for expeditious discharge under the provisions of chapter 5, Army Regulation 635-40, based on his EPTS medical condition.

14.  On 18 September 1980, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct and directed he be issued a UOTHC discharge.  On 22 September 1980, the applicant was discharged accordingly.

15.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant upon his discharge shows he completed a total of 1 year, 7 months, and 28 days of creditable active military service and accrued 23 days of time lost due to confinement.

16.  Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) sets forth policies, responsibilities, and procedures that apply in determining whether a Soldier is unfit because of physical disability to reasonably perform the duties of his or her office, grade, rank, or rating.  If a Soldier is found unfit because of physical disability, this regulation provides for disposition of the Soldier according to applicable laws and regulations.

17.  Chapter 4 of Army Regulation 635-40 contains procedures for determining eligibility for disability evaluation.  Paragraph 4-2 contains guidance on processing enlisted Soldiers subject to administrative separation.  It states, in pertinent part, that an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.

18.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations), dated 6 June 2005, 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, in pertinent part, that a discharge UOTHC is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general under honorable conditions discharge (GD) 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.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority, unless authority is properly delegated.

19.  Paragraph 3-7a of the same regulation 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.  Paragraph 3-7b 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 HD.  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 contentions that his overall record of service and medical issues support an upgrade of his discharge were carefully considered.  However, these factors are not sufficiently mitigating to support granting the requested relief.

2.  By regulation, an enlisted Soldier may not be referred for or continue physical disability processing when action has been started under any regulatory provision which authorizes a characterization of service of UOTHC.  As a result, the applicant's disability separation processing based on his EPTS medical condition was stopped and his separation processing for misconduct under the provisions of chapter 14 was completed in accordance with the applicable regulations.

3.  The evidence of record confirms the applicant's misconduct 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.

4.  The applicant's record documents no acts of valor or significant achievement. 
However, it does reveal a significant disciplinary history that includes his acceptance of NJP on two separate occasions and his conviction by an SCM.  As a result, his record was not sufficiently meritorious to support the issuance of a GD or an HD by the separation authority at the time of his discharge, nor is it sufficiently meritorious to support an upgrade of his discharge at this late date.  Further, while unfortunate, the applicant's current medical condition does not provide a sufficient evidentiary basis to support granting the requested relief in this case.

5.  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)                                         AR20090016642



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016642



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1