IN THE CASE OF:	  

		BOARD DATE:	    28 April 2011

		DOCKET NUMBER:  AR20100022842 


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 reconsideration of his earlier petition for upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).

2.  The applicant states:

	a.  he failed to submit proof of his worthiness of an HD;

	b.  he is very sorry for his conduct while serving in the military;

	c.  he was very young and dumb to the real facts of life, immature, and agrees with the Army's decision to discharge him; and

	d.  he has turned his life around immeasurably since his discharge from the Army in that he has given his life to his Heavenly Father, works with youths, completed many life-skill programs, and attended recovery programs.

3.  The applicant provides:

* a self-authored statement, dated 12 August 2010
* a letter from the Secretary of the Commonwealth of Virginia, Office of the Governor, undated
* a restoration of rights certificate by the Governor of Virginia, undated
* six certificates issued to him between March 2006 and 6 September 2007

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20090005591 on 13 August 2009.

2.  The applicant submits new arguments and documents that warrant consideration by the Board.

3.  During its original review of this case and in the absence of a discharge packet, the Board determined:

   a.  the applicant's age was not a mitigating factor;

   b.  although the applicant contended he became dependent on alcohol and drugs while in the Army, there was no evidence of record to show he was ever diagnosed with an alcohol or drug abuse dependency prior to his discharge or that he referred himself for treatment of alcohol/drug problems; and

   c.  absent evidence to the contrary, it must be presumed that the applicant's separation was administratively correct and in conformance with applicable regulations and his characterization of service was commensurate with his overall record of service.  Accordingly, his request was denied.

4.  The applicant now provides a letter from the Secretary of the Commonwealth of Virginia wherein she informs him the Governor of Virginia granted his petition for restoration of his civil rights.  He also provides a Commonwealth of Virginia, Executive Department Certificate that shows the Governor restored his right to vote, hold public office, serve on a jury, and be a notary public.

5.  The applicant provides certificates which show he completed Intensive Substance Abuse Treatment, Anger Management and Lifeskills, and the Community Corrections Diversion Program.  He also provides certificates which show he received an Outstanding Divertee Award and a Community Service Award.

6.  The applicant enlisted in the Regular Army on 7 February 1978.  He continued to serve until he was discharged from active duty on 9 January 1981, having completed 2 years, 9 months, and 16 days of creditable active service.

7.  The applicant's record does not include a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, it does include a properly-constituted DD Form 214 (Certificate of Release or Discharge from Active Duty) that was issued to him on 9 January 1981.  The applicant's DD Form 214 show he was discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b(1), by reason of frequent involvement in incidents of a discreditable nature with civil or military authorities, with a character of service of UOTHC.  It further shows he accrued 47 days of time lost.

8.  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.  A UOTHC discharge is normally considered appropriate for members separated under these provisions of the regulation.  The separation authority may authorize a general under honorable conditions discharge (GD) or HD if warranted based on the member's overall record of service.

9.  Army Regulation 635-200, paragraph 3-7a, provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 post-service conduct warrants an upgrade of his UOTHC discharge to an HD.  While his post-service accomplishments, self-improvement, and service to his church and youth are noteworthy, it is insufficient to warrant the requested relief.

2.  In the absence of evidence to the contrary, it is presumed that the discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The character of the discharge appears to be commensurate with his overall record.

3.  Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel.  This misconduct and lost time rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

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 to amend the decision of the ABCMR set forth in Docket Number AR20090005591 dated 13 August 2009.



      __________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)                                         AR20100022842



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ABCMR Record of Proceedings (cont)                                         AR20100022842



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