BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022680 


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 there were never frequent incidents with civilian and military authorities.  He was involved in two incidents.  One was the misuse of a ration card and the other was being absent without leave (AWOL) for 3 weeks.  He adds he was young and stupid but not a criminal.

3.  The applicant states he has grown up considerably and become a responsible adult with a family, home, and stable job.  He also has a degree in nursing.

4.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 that he enlisted in the Regular Army on 6 March 1981, at age 18.  He was awarded the military occupational specialty of plumber, and he was promoted to pay grade E-2.

3.  The applicant was counseled in writing on 11 occasions primarily for not being at his appointed place of duty at the prescribed time.  The applicant's counseling's included violation of restriction, refusing to work, being off base without a pass, disappearing during duty hours, missing formation, and failure to properly perform his duties.

4.  On 30 November 1981, while in Korea, the applicant accepted nonjudicial punishment (NJP) for violating a general regulation by purchasing controlled items in excess of the prescribed monthly limit.

5.  On 25 August 1982, the applicant's commander requested pre-trial confinement for the applicant.  The commander stated that the applicant had repeatedly left the compound without authorization and without a pass.  He had been absent for several entire duty days.  In addition, two electric razors and a stereo cassette player were stolen when it was reported that the applicant was "checking out the tents in the area."  The applicant's commander added that the applicant "is an admitted barracks thief."

6.  On 7 September 1982, the applicant was given a psychiatric evaluation.  The examining official stated the applicant's overdose on alcohol and romilar (codeine and guaifenesin) appeared impulsive but the applicant remained a strong AWOL risk.  The applicant was psychiatrically cleared for separation action by his command.

7.  On 13 September 1982, the applicant's commander wrote a memorandum for record (MFR).  In that MFR the commander stated he had recommended that the applicant be tried by a special court-martial and be given a period of confinement and a bad conduct discharge (BCD).  However, he was directed to initiate action to have the applicant tried by a summary court-martial and to initiate action to discharge him for misconduct.  He informed the applicant of this and told the applicant he believed he was getting off too easily and that if he committed any further misconduct, he would again request that he be given a special court-martial and a BCD.


8.  On 25 September 1982, the applicant's commander notified the applicant of his intent to recommend that he be discharged due to misconduct - frequent incidents with civilian and military authorities.  He was also advised of his rights in conjunction with that recommendation.  The applicant waived his right to a board of officers and to submit matters in his own behalf.

9.  The applicant's commander's recommendation was approved by the appropriate authority.  Accordingly, on 24 November 1982 the applicant was issued a UOTHC discharge.  The DD Form 214 he was issued shows he had time lost from 3 to 12 July 1982, 31 August to 3 September 1982, and from 16 to
17 October 1982.

10.  Army Regulation 635-200 (Enlisted Separations) 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.  When discharge is ordered under this authority, a UOTHC discharge is considered appropriate.

11.  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.

12.  The Manual for Court-Martial shows that AWOL and failure to be at the appointed place of duty at the time prescribed are violations of Article 86 of the Uniform Code of Military Justice (UCMJ).

DISCUSSION AND CONCLUSIONS:

1.  The applicant was counseled in writing 11 times for violation of restriction, refusing to work, being off base without a pass, disappearing during duty hours, missing formation, and failure to properly perform his duties.  He accepted NJP for violating a general regulation by purchasing controlled items in excess of the prescribed monthly limit.  The applicant's commander stated the applicant admitted to being a barrack's thief.  



2.  The sheer number of offenses certainly constituted grounds to discharge the applicant for misconduct - frequent incidents with civilian and military authorities.

3.  Contrary to the applicant's contentions, his offenses were criminal since they were violations of the UCMJ.  The fact that he was not given additional NJPs or brought to trial by court-martial does not mean they were not criminal offenses.

4.  The applicant's discharge properly reflects his repeated misconduct and there is no reason to change that discharge.

5.  The applicant's post-service achievements are commendable.  However, he was issued a UOTHC discharge for his service while on active duty.  As such, his post-service conduct is not considered mitigating in this case.

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)                                         AR20100022680



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ABCMR Record of Proceedings (cont)                                         AR20100022680



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