BOARD DATE:	  16 December 2010

		DOCKET NUMBER:  AR20100016715 


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

2.  He states:

* he was married, but his spouse returned to Korea and he did not report it
* he was accused of being married to another woman, but this was later corrected
* he was 11 days from completing his term of enlistment and he was a good Soldier up to that point
* he feels he should receive at least a general discharge

3.  He provides a self-authored statement.

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 20 August 1985 for a period of 3 years.  On 27 January 1987, he extended his enlistment for 5 months, thereby adjusting his expiration of term of service (ETS) date to 19 January 1989.

3.  His disciplinary history includes his acceptance of nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ) on four occasions for the following offenses:

* for failing to go at the time prescribed to his appointed place of duty on
20 and 21 February 1987
* for failing to go at the time prescribed to his appointed place of duty on
25 January 1988
* for failing to go at the time prescribed to his appointed place of duty on
9, 13, and 14 February 1988; wrongfully possessing some amount of marijuana on 22 February 1988; and wrongfully and unlawfully making a false written statement on 8 December 1988
* for being absent from morning formation on 16 May 1988

4.  His record also reveals a disciplinary history that includes numerous adverse counseling statements for matters such as:

* being absent from place of duty
* failing to pay debts
* failing to meet military standards by not being prepared for inspection
* failing to be promoted to specialist four
* being absent from physical fitness formation

5.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows two periods of time lost from 26 to 27 May 1988 and 3 to 6 June 1988.  His service record contains corresponding DA Forms 4187 (Personnel Actions) which show he was absent without leave (AWOL) during these periods.

6.  On 4 April 1988, the unit commander notified him of the proposed recommendation to discharge him under the provisions of Army Regulation 
635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for a pattern of misconduct and failure to respond to rehabilitative counseling.  He was advised of his rights.  

7.  He acknowledged notification of the separation action, consulted with legal counsel, voluntarily waived consideration of his case by an administrative separation board contingent upon him receiving a characterization of service or description of separation no less favorable than general under honorable conditions, and submitted statements in his own behalf.  However, no such statements are available for review.

8.  A board of officers met on 23 June 1988 and recommended the applicant's discharge from the service because of serious misconduct with issuance of a UOTHC discharge.  

9.  On 21 July 1988, the separation authority approved the findings and recommendations of the board to discharge the applicant from the service under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct - pattern of misconduct with issuance of a UOTHC discharge.

10.  He was accordingly discharged on 8 August 1988 under the provisions of Army Regulation 635-200, paragraph 14-12b for misconduct - pattern of misconduct.  He completed 2 years, 11 months, and 19 days of total active service with 6 days of time lost.

11.  He provided a self-authored statement that stated:

* he could have been given a general discharge based on his length of service and achievements as a Soldier in the U.S. Army
* he took his position in the Armed Forces serious based on his participation in all company activities, performance of his military occupational specialty (MOS) duties, and his physical training
* he used poor judgment by not reporting his spouse’s absence
* his superior proceeded to court-martial him for bigamy when he thought he was married to two women 
* his mental stress contributed to his small infractions which led to his discharge
* he should have received counseling or some type of punishment for his actions, but he should not have been discharged
* he was less than two weeks from finishing his term of service when he was discharged
* he needs medical attention

12.  His service record does not indicate he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  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, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter.  However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record.  Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation.

14.  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 spouse returned to Korea and he did not report it.  However, he has provided no evidence other than his self-authored statement that his personal problems involving his spouse were the reasons he committed the offenses which led to his discharge.

2.  His service record shows he was discharged on 8 August 1988 under the provisions of Army Regulation 635-200, paragraph 14-12b by reason of misconduct - pattern of misconduct, which was five months prior to his adjusted ETS date of 19 January 1989.

3.  Although he states he should have been given a general discharge based on his length of service and achievements in the Army, discharges are not upgraded based on the passage of time.  Each case is considered based on its own merits.  

4.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.


5.  His service record shows he received four Article 15s, several adverse counseling statements, and he was AWOL on two separate occasions.  

6.  The evidence of record shows he was appropriately counseled by legal counsel and he was advised of the effects of a UOTHC discharge.  

7.  He states he is in need of medical attention; however, this issue is not a sufficiently mitigating factor to warrant an upgrade.

8.  It appears the chain of command determined that his overall military service did not meet the standards for a general under honorable conditions or fully honorable discharge as defined in Army Regulation 635-200 and appropriately characterized his service as UOTHC.

9.  His service record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting his 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)                                         AR20100016715



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ABCMR Record of Proceedings (cont)                                         AR20100016715



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