IN THE CASE OF:	  

		BOARD DATE:	  21 December 2010

		DOCKET NUMBER:  AR20100017826 


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 general under honorable conditions discharge (GD) be upgraded to an honorable discharge (HD).

2.  The applicant states he accrued lost time during his military service because he had to take care of his infant child which became necessary after the mother of his child left the country.

3.  The applicant provides no documentary evidence 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's record shows he enlisted in the Regular Army on 29 August 1979.  He was trained in and awarded military occupational specialty 67N (Utility Helicopter Repairer) and sergeant/E-5 is the highest grade he attained while serving on active duty.  The record further shows the applicant was reduced to specialist four/E-4 for cause on 20 December 1983 and to private first class/E-3 on 16 February 1984.

3.  The record shows the applicant earned the following awards during his active duty tenure:

* Army Service Ribbon
* Overseas Service Ribbon
* Noncommissioned Officer Professional Development Ribbon
* Army Good Conduct Medal
* Expert Marksmanship Qualification Badge with Rifle and Hand Grenade Bars.

4.  The applicant's record documents no acts of valor.  The record reveals a disciplinary history that includes his accrual of 34 days of lost time during five separate periods of being absent without leave (AWOL) between 16 November 1983 and 29 December 1983.  His record also shows he was counseled for indebtedness for failure to pay a phone bill and car loan and for non-support of his family.

5.  The applicant's record contains DA Forms 2627 (Records of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) that show he accepted nonjudicial punishment on the following two separate occasions for the offenses indicated:

	a.  on 20 December 1983, for wrongfully appropriating a vehicle of another Soldier and two specifications of AWOL and

	b.  on 1 February 1984, for being AWOL, making a false official statement, and two specifications of failing to be at his appointed place of duty at the time prescribed.

6.  On 23 April 1984, the applicant was notified by his unit commander of the intent to initiate separation action against him under the provisions of chapter 14, Army Regulation 635-200 (Personnel Separations), for misconduct and that he was recommending the applicant receive a GD.

7.  In the separation recommendation, the unit commander cited the applicant's pattern of misconduct which included a history of AWOL and indebtedness as the reason for taking the action.  The unit commander also indicated many efforts had been made to counsel and rehabilitate the applicant and that it had become clear that despite these attempts, the applicant would not develop into a satisfactory Soldier.  The unit commander further stated the applicant had indicated he had no intention of altering his behavior or conduct and would not accept responsibility for his behavior.

8.  On 25 April 1984, after being advised of the basis for the contemplated separation action and its effects, the applicant completed an election of rights statement in which he elected to waive consideration of his case by a board of officers and representation by counsel.  He also elected not to submit statements in his own behalf.

9.  On 9 May 1984, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, and directed he receive a GD.  On 9 May 1984, the applicant was discharged accordingly.

10.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued to the applicant at the time of his discharge shows he held the rank of PFC/E-3 and completed a total of 4 years, 7 months, and 12 days of creditable active military service.  It also shows he accrued 34 days of lost time due to AWOL.

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.

12.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and AWOL.

13.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that an under other than honorable conditions (UOTHC) discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.

14.  Paragraph 14-3 of Army Regulation 635-200 further states that a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  An HD may be approved only by the commander exercising general court-martial jurisdiction or higher authority unless authority is properly delegated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to an HD because his lost time was the result of being required to care for his infant child was carefully considered.  However, there is insufficient evidence to support this claim.

2.  The evidence of record confirms the applicant was discharged for misconduct based on a pattern of misconduct that included several AWOL offenses and a history of indebtedness.

3.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  Clearly, the length and honorable nature of the applicant's overall record of service was the basis for him receiving a GD instead of a UOTHC discharge.  However, it is equally clear his record of misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, it would not be appropriate to upgrade his discharge at this late date.

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 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)                                         AR20100017826



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100017826



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1