IN THE CASE OF:	  

		BOARD DATE:	    15 February 2011

		DOCKET NUMBER:  AR20100021601 


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 an honorable discharge (HD). 

2.  The applicant states he had a newborn and was under extreme stress and pressure at the time.  He claims he had no intention of being a disruption to the military and now needs benefits.  He states he has nothing and needs help.  

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 22 August 1984, and was trained in and awarded military occupational specialty72E (Telecommunication Center Operator).

3.  The record further shows the applicant was advanced to the grade of private first class/E-3 on 22 August 1985, and that this is the highest grade he attained while serving on active duty.  It further shows he was reduced to private/E-2 for cause on 23 July 1986.  His record shows he earned no individual awards during his active duty tenure and it documents no acts of valor or significant achievement. 

4.  The record reveals a disciplinary history that includes his acceptance of 
non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following two separate occasions for the offenses indicated:

	a.  23 July 1986, for wrongfully using marijuana, unlawfully striking another Soldier, and being drunk and disorderly; and 

	b.  5 August 1987, for failing to go to his appointed place of duty at the time prescribed.  

5.  The record also shows on 18 December 1986, the suspended portion of the punishment imposed on the applicant by his 23 July 1986 Article 15 was vacated based on his committing the offense of assault consummated by battery on 20 October 1987.  The record further reveals an extensive record of counseling for several incidents of domestic disturbances; history of indebtedness.

6.  On 25 March 1987, a Bar to Reenlistment was imposed on the applicant based on his 23 July 1986 Article 15 and for nonpayment of just debts based on a notification of dishonored checks to the Army Air Force Exchange Service totaling $1,194.79.   

7.  On 11 August 1987, 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.  The commander cited the applicant’s disciplinary history as the basis for taking the action and recommended the applicant receive an UOTHC discharge. . 



8.  The applicant consulted with legal counsel and being advised of the basis for the contemplated separation action and its effect, the applicant completed an election of rights 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 3 September 1987, the separation authority approved the applicant's discharge under the provisions of chapter 14, Army Regulation 635-200, and directed he receive a UOTHC discharge.  On 16 September 1987, 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 private/E-1, and had 3 years and 25 days of creditable active military service.  

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.   Paragraph 14-3 contains guidance on characterization of service for members separated under chapter 14.  It states that an UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a general, under honorable conditions discharge (GD) if such is merited by the Soldier's overall record. It further states 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 he needs benefits has been carefully considered.  However, the authorization of benefits is not a valid basis for upgrading a discharge.  



2.  The evidence of record confirms the applicant was discharged for misconduct based on an extensive disciplinary history that included illegal drug use, multiple assault offenses, indebtedness and several other minor infractions.  His separation processing was accomplished in accordance with the regulation in effect at the time.  All requirements of law and regulation were met and the applicant's rights were fully protected throughout the separation process.

3.  The applicant’s record documents no acts of valor or significant achievement that would have supported the issue of a GD or HD by the separation authority at the time of his discharge, or that would support an upgrade of his discharge at this late date.  

4.  In order to justify correction of a military record, the applicant must show to the satisfaction of the Board or it must otherwise satisfactorily appear that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy this requirement.

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)                                         AR20100021601



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ABCMR Record of Proceedings (cont)                                         AR20100021601



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