IN THE CASE OF:	  

		BOARD DATE:	  22 April 2010

		DOCKET NUMBER:  AR20090017776


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge (GD).

2.  The applicant states he was supposed to receive a GD.

3.  The applicant provides no additional documents.

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.  With 3 years of prior service in the Regular Army, the applicant reenlisted for 4 more years on 7 February 1978.  He initially served at Fort Carson, CO, and then in April 1979 he was assigned for duty in Greece.  After his tour of duty in Greece, he returned to Fort Carson in July 1981.
3.  The applicant's records contain three records of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, for:

	a.  being absent without authority from his place of duty from 8 August 1979 to 9 August 1979.  NJP was administered on 16 August 1979;

	b.  failing to go at the time prescribed to formation on 18 March 1980.  NJP was administered on 28 March 1980;

	c.  willfully disobeying a lawful order to report to class on 10 July 1979 for which he received a forfeiture of $200.00 pay per month for 2 months and 30 days of restriction and extra duty; and

	d.  disobeying the lawful order of a captain on 12 November 1981; three specifications of forging postal forms on 12 and 16 November 1981; and dereliction of duty by falsifying postal records between 12 and 16 November 1981.  NJP was administered on 23 November 1981.

4.  On 8 December 1981, the applicant's commander decided to discharge him for frequent acts of a discreditable nature with civil and military authorities under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations).  On the same date, the applicant consulted with counsel and waived consideration by a board of officers.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued a discharge UOTHC and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He declined to submit a statement in his own behalf.

5.  On 9 December 1981, the applicant's commander submitted his request for the applicant's discharge.  In his request, he asked that all rehabilitative efforts be waived.  The request was supported by the applicant's intermediate commander.  On 2 February 1982, the approving authority approved the request and directed a UOTHC discharge be issued.  The applicant was discharged on 10 February 1982.

6.  The applicant petitioned the Army Discharge Review Board (ADRB) seeking a discharge upgrade.  The ADRB, after considering his case on 29 May 1991, denied his request.

7.  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.

8.  Army Regulation 635-200 provides guidance on characterization of service and states, in pertinent part:

	a.  Paragraph 3-7a states 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.

	b.  Paragraph 3-7b states 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 contends that his discharge should be upgraded to a GD.

2.  The applicant committed numerous acts of misconduct culminating in violations of postal regulations.  His commander elected to administratively discharge him under the provisions of chapter 14, Army Regulation 635-200.

3.  The applicant consulted with counsel and waived his rights, including consideration by a board of officers.  He acknowledged that he might expect to encounter substantial prejudice in civilian life if he was issued a discharge UOTHC and that he may be ineligible for many or all benefits as a veteran under both Federal and State laws.  He declined to submit a statement in his own behalf.

4.  The applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge is commensurate with the applicant's offenses and his overall record of military service.

5.  There is no evidence the applicant was ever led to believe he would receive a GD.  On the contrary, he was specifically warned of the consequences of a UOTHC discharge.
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)                                         AR20090017776



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20090017776



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1