BOARD DATE:	19 May 2011  

		DOCKET NUMBER:  AR20100026933 


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.  

2.  He states he has been a responsible and respectable citizen since he was discharged in 1980.  

3.  He provides three character reference statements and 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 enlisted in the Regular Army on 30 May 1978 for a period of 
3 years.  
3.  His disciplinary history includes acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice, on five occasions for:

* assaulting a civilian by striking him in the chest with a motorcycle helmet
* breaking restriction
* failing to obey a lawful order
* stealing four bottles of Tylenol
* unlawfully entering the Federal Installation of Schloss Kaserne, Germany
* wrongfully communicating a threat to injure a platoon sergeant
* wrongfully using provoking gestures towards a platoon sergeant

4.  On 23 June 1980, he was notified of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1) and (2) due to disregard for authority and counseling statements.  He was advised of his rights.  He consulted with legal counsel, requested a personal hearing by a board of officers, and a personal appearance before a board of officers.  He did not submit statements in his own behalf.

5.  His service record contains several adverse counseling statements rendered between July 1979 and July 1980 for failing to follow instructions, failing to relieve the morning crew of truck duty on time, being late for training, failing to salute, unsatisfactory performance, a poor attitude, improving his personal appearance and personal conduct, missing morning formation and physical training, receiving traffic citations, and failing to pay debts.

6.  On 26 September 1980, a board of officers met and recommended that the applicant be discharged from the service due to misconduct with the issuance of a UOTHC discharge.

7.  The separation authority approved the board's recommendation, waived rehabilitation, and directed that the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1) and (2) for misconduct - frequent incidents of a discreditable nature with civil or military authorities due to an established pattern for shirking with the issuance of a UOTHC discharge. However, his DD Form 214 erroneously shows he was discharged due to misconduct-fraudulent entry.  

8.  Accordingly, he was discharged on 9 December 1980.  He had completed 
2 years, 6 months, and 10 days of active military service.

9.  He provided two character reference statements from his former employers who confirmed his dates of employment and gave him accolades for his performance as a truck driver.

10.  He also provided a character reference statement from his mother who stated his misconduct was based on youthful pranks after he had his motorcycle stolen in Germany.  She also described his family life and work experience as a truck driver over the past 20 years.  Additionally, she stated he had been experiencing mental disorientation and depression and does not have any insurance.  

11.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

12.  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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

13.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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.

14.  Army Regulation 635-200, paragraph 3-7b, states 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends he has been a responsible and respectable citizen since his discharge in 1980.  However, his post-service accomplishments are not sufficiently mitigating to warrant an upgrade of his discharge.  

2.  His service record shows he received five Article 15s and several adverse counseling statements.  It appears the applicant's chain of command determined the applicant's overall military service did not meet the standards of a general discharge and appropriately issued him a UOTHC discharge.  

3.  His administrative separation under the provisions of Army Regulation 
635-200, paragraph 14-33b(1) and (2) was accomplished in compliance with applicable regulations at the time.  His service record is void of procedural errors which would have jeopardized his rights.

4.  His character references are acknowledged.  However, they are not sufficiently mitigating to warrant relief in this case.

5.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for upgrading his discharge to either honorable or general under honorable conditions.  

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)                                         AR20100026933



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ABCMR Record of Proceedings (cont)                                         AR20100026933



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