IN THE CASE OF:
BOARD DATE: 12 October 2010
DOCKET NUMBER: AR20100011641
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 discharge.
2. The applicant states he was young (18 years old) and suffered from emotional problems caused by depression. He is now a changed man and needs his discharge upgraded for funeral benefits.
3. The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty), a page from his DA Form 2-1 (Personnel Qualification Record), and a medical history form from the Georgia Department of Corrections which shows that the applicant claimed to suffer from emotional problems and depression.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 25 July 1980 and was awarded the military occupational specialty of tank driver.
3. On 5 October 1981, the applicant's commander imposed nonjudicial punishment (NJP) against the applicant for disobeying a lawful order.
4. On 4 February 1982, the applicant was convicted by a summary court-martial of wrongfully appropriating a 35mm camera and 50mm lens, the property of a sergeant.
5. On 5 March 1982, the applicant's commander notified him of his intent to recommend his separation due to misconduct and of his rights in conjunction with that recommendation. The applicant waived his rights with the exception of making a statement in his own behalf.
6. In his statement the applicant said that he didn't believe he should be given a discharge for misconduct because he did nothing bad. He had asked for a discharge (presumably, a hardship discharge) long before he went to jail because he needed money for his wife and 3 children. He added that he was not paid for February and his commander made everything bad for him.
7. On 11 March 1982, the applicant was given a mental status evaluation in which he was found to have normal behavior and thought content, that he was fully oriented, and he had clear thinking process. On the same day the applicant was given a separation physical examination and was determined medically qualified for separation.
8. On 24 March 1982, the applicant was given a UOTHC discharge due to frequent involvement in incidents of a discreditable nature with civil or military authorities. He was 20 years old at that time.
9. 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 discharge is ordered under this authority, a UOTHC discharge is considered appropriate.
DISCUSSION AND CONCLUSIONS:
1. The applicant was no younger than other Soldiers who honorably completed their enlistments. Therefore, his age is not considered a mitigating factor in his case.
2. The applicant accepted NJP for disobeying a lawful order and was convicted by a summary court-martial of stealing from a sergeant. Such serious misconduct warranted a UOTHC discharge.
3. The applicant included a statement with his waiver of rights. In that statement he claimed to be experiencing financial hardship and expressed his belief that he did not warrant a discharge for misconduct. That statement was taken into consideration when his discharge was approved and his service characterized.
4. The Board does not change properly constituted military records to establish eligibility for benefits from other agencies.
5. In view of the foregoing, there is no basis for granting the applicants 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) AR20100011641
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ABCMR Record of Proceedings (cont) AR20100011641
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