BOARD DATE:	  28 September 2010

		DOCKET NUMBER:  AR20100009310 


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

2.  The applicant states, in effect, the characterization of his service was to be changed to honorable 6 months after his discharge.

3.  The applicant provides no documentation in support of his request.

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 8 November 1979.  He was trained in and awarded military occupational specialty (MOS) 76D (Materiel Supply Specialist).  He also served in MOS 76C (Equipment Records and Parts Specialist) during his Army service.

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following:  

* on 14 April 1980, for absenting himself from his unit without authority
* on 1 May 1981, for violating a lawful regulation by leaving his weapon behind

4.  Court-Martial Convening Order Number 4, Headquarters, 1st Battalion,
22d Field Artillery, dated 14 September 1981, shows the applicant was convicted by a summary court-martial of receiving stolen property that he knew had been stolen.  His sentence was reduction to private/E-1, confinement at hard labor for 30 days, and a forfeiture of $300 pay for 1 month.

5.  A DA Form 4187 (Personnel Action) shows, on 20 April 1982, the applicant's commander approved blocking his promotion to private/E-2.  The form shows his duty performance had been such as not to warrant promotion consideration at that time.  

6.  A DA Form 2496 (Disposition Form) shows, on 3 June 1982, the applicant's commander reviewed a bar to reenlistment pertaining to the applicant and recommended that the bar remain in effect.  

7.  On 17 June 1982, the applicant accepted NJP under the provisions of Article 15 of the UCMJ for failing to go at the time prescribed to his appointed place of duty.

8.  The complete facts and circumstances of the applicant's discharge are not contained in the available records.  However, his records contain a properly constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 17 August 1982.  This DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  The narrative reason for separation was "administrative discharge conduct triable by court-martial."




9.  The applicant's DD Form 214 further shows he was issued a UOTHC discharge and that he completed 2 years, 8 months, and 16 days of total active service.

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

11.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.

12.  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.

13.  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 evidence of record does not support the applicant's request for an upgrade of his UOTHC discharge to honorable.

2.  The U.S. Army does not have, nor has it ever had, a policy to automatically upgrade discharges.  Each case is decided on its own merits when an applicant submits an application requesting a change in discharge.




3.  Separations under the provisions of chapter 10 of Army Regulation 635-200 are voluntary separations, in which the applicant must admit guilt of the charges.  Although the applicant's separation processing paperwork is not available for review with this case, it is presumed that the applicant voluntarily requested discharge from the Army in lieu of trial by court-martial.  

4.  There is no evidence which shows the applicant was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

5.  The applicant's record of service includes three NJPs and conviction by a summary court-martial.  Based on this record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either a general discharge or an honorable 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)                                         AR20100009310



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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ABCMR Record of Proceedings (cont)