BOARD DATE:	  6 May 2010

		DOCKET NUMBER:  AR20090019268 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states his discharge should be upgraded due to the length of time since he has been separated from the service.  

3.  The applicant provides no additional 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 enlisted in the Regular Army on 31 January 1978 for a period of four years.  

3.  On four separate occasions between September 1978 and May 1979, the applicant accepted nonjudicial punishments (NJP) under Article 15, Uniform Code of Military Justice for the following offenses:

* Wrongful appropriation of a Levis blue denim cap
* Failed to go to his appointed place of duty (3 specifications)
* Failed to obey a lawful order (2 specifications)
* Disobeyed a lawful order
* Assaulted a private by striking him in the left eye with a closed fist
* Derelict in the performance of his duties
* Wrongfully exposed genitalia 
* Wrongfully urinated on the outside stoop of a building

4.  On 1 October 1979, the applicant was convicted by a special court-martial of being absent without leave (AWOL) from 23 May to 8 August 1979.  He was sentenced to confinement at hard labor for 75 days and a forfeiture of $200.00 pay for 2 months.  

5.  On 14 December 1979, he accepted NJP under Article 15 for failing to obey a lawful order.

6.  The applicant’s discharge packet is not available for review.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was discharged on 2 January 1980 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1) for misconduct based on frequent incidents of a discreditable nature with civil or military authorities.  He was issued a UOTHC discharge.  He completed 1 year, 7 months, and 6 days of creditable active service with 116 days of lost time.  

7.  There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations.

8.  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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of 


misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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.  

10.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge 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 contends his discharge should be upgraded due to the length of time since he has been separated from the service.  However, this issue is not sufficiently mitigating to warrant an upgrade of his discharge.  

2.  In the absence of evidence to the contrary, the applicant’s discharge processing is presumed to have been administratively correct and in conformance with applicable regulations.

3.  The applicant’s service record shows he received five Article 15s for various offenses and one special court-martial for being AWOL.  

4.  Although the applicant now feels he should receive an honorable discharge, it appears his chain of command determined his overall military service did not meet the standards for either an honorable or general discharge as defined by Army Regulation 635-200.  It appears his service was appropriately characterized as UOTHC.

5.  The evidence of record does not indicate the actions taken in the applicant’s case was in error or unjust.  Therefore, there is no basis for granting the applicant's request.  



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)                                         AR20090019268



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ABCMR Record of Proceedings (cont)                                         AR20090019268



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