IN THE CASE OF:	

		BOARD DATE:	  17 February 2010

		DOCKET NUMBER:  AR20090016852 


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 refers to a previously submitted statement on an application he submitted on 4 May 2009; however, a copy of his statement is not included with this application.

3.  The applicant provides his DD Form 214 (Report of Separation from Active Duty) 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 5 December 1974.  He was trained in, awarded, and served in military occupational specialty (MOS) 51B (Carpenter), and the highest rank he attained while serving on active duty was specialist (E-4).  His record documents no acts of valor or significant achievement.

3.  The applicant's DA Form 2-1 (Personnel Qualification Record) shows in item 9 (Awards and Decorations) that he earned the Sharpshooter Marksmanship Qualification Badge with Rifle Bar during his active duty tenure.  Item 21 (Time Lost) shows he accrued 2 days of lost time due to being absent without leave (AWOL) from 13 July 1977 through 14 July 1977.

4.  The applicant's record contains a DA Form 3975 (Military Police Report) and Fort Riley Form 1724 (Military Police Investigations Chemical Field Test Report), dated 3 September 1976.  These documents show the applicant was cited for wrongful possession of marihuana.

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 on two separate occasions on 18 January 1977 and 13 May 1977, his conviction by a summary court-martial (SCM) on 16 August 1977, and an approved bar to reenlistment based on myriad of incidents of misconduct.

6.  On 16 August 1977, the unit commander notified the applicant of his intent to initiate separation action on him under the provisions of paragraph 13-5a, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), by reason of unfitness for misconduct.

7.  On 23 September 1977, the applicant consulted with legal counsel and was advised of the basis for the contemplated separation action and its effects, the rights available to him, and the effect of a waiver of his rights.  Subsequent to this counseling, the applicant waived consideration of his case and a personal appearance before an administrative separation board and his right to consulting counsel.  He also elected not to submit a statement in his own behalf.

8.  On 20 October 1977, the separation authority approved the separation action and directed the applicant receive a UOTHC discharge.  On 1 November 1977, the applicant was discharged accordingly.  The DD Form 214 he was issued at the time shows he separated under the provisions of paragraph 13-5a(1), Army Regulation 635-200, by reason of misconduct for unfitness and that he received a UOTHC discharge.  It also shows he completed a total of 2 years, 10 months, and 25 days of creditable active military service and accrued 2 days of lost time due to AWOL.

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

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 13, in effect at the time, provided for the separation of members for unfitness.  The separation authority could issue an HD or general under honorable conditions discharge (GD) if it was warranted by the member's overall record of service; however, a UOTHC discharge was normally considered appropriate for members separating under this provision of the regulation.

11.  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 contention that his UOTHC discharge should be upgraded to an HD 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 in effect at the time.  All requirements of law and regulation were met and the applicant's 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 an extensive disciplinary history that includes his acceptance of NJP on two separate occasions, a military police report confirming his wrongful possession of marihuana, and an SCM conviction.  This extensive record of misconduct clearly did not support the issuance of an HD or GD by the separation authority at the time of his discharge and does not support an upgrade at this time.

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)                                         AR20090016852



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090016852



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1