BOARD DATE: 14 October 2010
DOCKET NUMBER: AR20100010652
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 that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.
2. The applicant states he was just young and stupid. He made some mistakes he wishes he hadn't made. He adds that he just needs to get some medical benefits.
3. The applicant does not provide any additional documentation.
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 military records show he enlisted in the Regular Army on 9 April 1980 and was awarded the military occupational specialty of petroleum supply specialist.
3. The applicant accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on four occasions for wrongfully using provoking words to a noncommissioned officer, being drunk and disorderly in quarters, disobeying a lawful order (two specifications), wrongfully communicating a threat to kill a fellow Soldier (two specifications), being absent without leave from 15 September 1980 to 21 January 1981 and again from 7 to 9 July 1980, failing to go at the time prescribed to his appointed place of duty, and participating in a breach of peace by wrongfully engaging in a fist fight with another Soldier.
4. The applicant's commander notified him of his intent to recommend his discharge for misconduct and of his rights in conjunction with that recommendation. The applicant waived his rights.
5. The applicant's commander then recommended his discharge for misconduct and the recommendation was approved by the appropriate authority. Accordingly, on 29 April 1981 he was issued a UOTHC discharge under the provisions of paragraph 14-33b(1) of Army Regulation 635-200 (Personnel Separations). His records show he was born on 8 May 1961; therefore, he was almost 20 years of age at the time of his discharge.
6. 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. When a discharge is ordered under this authority, a UOTHC discharge is considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant's numerous, sometimes violent, and serious offenses certainly warranted a UOTHC discharge for a pattern of misconduct.
2. The applicant was almost 20 years of age when he was discharged. He was no younger than other Soldiers who served their enlistments honorably. As such, his youth is not considered a matter of mitigation.
3. The ABCMR does not correct a properly-constituted military record to establish benefits from other agencies.
4. In view of the foregoing, 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) AR20100010652
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