IN THE CASE OF:
BOARD DATE: 14 April 2011
DOCKET NUMBER: AR20100024546
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 discharge under other than honorable conditions (OUTHC) be upgraded to a general discharge (GD).
2. The applicant states since being discharged, he has continuously educated himself by obtaining a barber license, and certifications in computer technology, customer service, culinary arts, and as an electrician helper. The applicant concludes that he is trying to put his life in order, to put himself in a position where his past will not continue to hinder him.
3. The applicant does not provide any additional documents.
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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants military records show that he enlisted in the Regular Army on 8 January 1990, and was never awarded a military occupational specialty nor promoted.
3. On 24 September 1990, the applicant's commander notified him of his intent to recommend his discharge due to misconduct and of his rights in conjunction with that recommendation. The applicant waived his rights.
4. On the same day, the applicant's commander forwarded a recommendation to discharge the applicant for misconduct. In that recommendation the applicant's commander stated that the applicant's disciplinary history included five instances of failure to repair; being absent without leave (AWOL) from 3 to 7 May 1990; underage drinking (twice); breaking restriction; committing the serious offense of assault; committing forgery; and committing larceny.
5. The applicant's commander's recommendation was approved by the appropriate authority. Accordingly, the applicant was given a discharge UOTHC on 6 November 1990.
6. 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. Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed. When discharge is ordered under this authority, an UOTHC discharge is considered appropriate.
7. 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 Soldiers separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. The applicant's disciplinary history of several instances of failure to repair, being AWOL, underage drinking, breaking restriction, assault, forgery, and larceny certainly formed the basis for his UOTHC discharge.
2. While it is commendable that the applicant is attempting to better himself through continued education, this in and of itself is insufficient to warrant upgrading a properly issued discharge.
3. In view of the foregoing, there is no basis for granting the applicants 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) AR20100024546
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ABCMR Record of Proceedings (cont) AR20100024546
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