IN THE CASE OF:	

		BOARD DATE:	  5 July 2011

		DOCKET NUMBER:  AR20100029262 


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 that he was stationed at Fort Riley, KS, and his wife did not want to live there.  She was pregnant and went back home, but she was supposed to come back to Kansas to have the baby.  He was not very happy, but he continued to perform his duties.  He told the officer in charge (OIC) that he was having marital problems.  The OIC asked him if he wanted an early discharge.  He told the OIC he wanted to be with his family and he would accept a general discharge.  He told the OIC that if he was not issued a general discharge he would just stay in the Army.  The OIC agreed.  He did not know the type of discharge he was issued until he had been separated.  He has been trying to get this issue resolved since he was discharged.  

3.  He provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 he enlisted in the Regular Army, in pay grade E-1, on 14 February 1977, for 3 years.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for the following:

   a.  On 7 June 1978, for being absent without leave (AWOL) from 30 to 
31 May 1978;
   
   b.  On 11 July 1978, for failing to go to his appointed place of duty on 3 and
4 July 1978.  On 25 July 1978, the suspended portion of his punishment was vacated and he was reduced to pay grade E-2;

   c.  On 15 September 1978, for failing to go to his appointed place of duty on 26 July and 8 August 1978 and disobeying a lawful order.  On 19 September 1978, the suspended portion of his punishment was vacated and he was reduced to pay grade E-1;
   
   d.  On 10 October 1978, for being AWOL from 19 to 20 September 1978; and

   e.  On 5 November 1978, for failing to go to his appointed place of duty on 20 October 1978.

4.  On 2 November 1978, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Separations), paragraph 14-33b(1), for misconduct.  The company commander stated the applicant's performance had been far below standards.  He had required constant supervision and could not be depended upon to return from leave when required.  The applicant had received four Article 15s and two vacations of suspended punishment.  The company commander stated that elimination under the provisions of Army Regulation 635-200, paragraph 13-4, was not considered due to the fact the applicant had frequent patterns of misconduct which was a result of motivation and maturity deficiencies.


5.  On 15 November 1978, the applicant acknowledged through counsel the proposed separation action.  He also acknowledged he understood the effects of the issuance of a general discharge or a UOTHC discharge.  He further acknowledged he understood he could be ineligible for many or all benefits as a veteran under both Federal and State laws.  He elected not to submit a statement in his own behalf.  

6.  On 22 November 1978, the convening authority approved the discharge action and directed the issuance of a UOTHC discharge.  

7.  On 7 December 1978, he was discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1), for misconduct, in pay grade E-1.  His service was characterized as UOTHC.  He was credited with completion of 1 year, 9 months, and 20 days of net service and 4 days of lost time.

8.  On 25 September 1987, the Army Discharge Review Board denied his request for an upgrade of his discharge.

9.  On 18 November 1998, the ABCMR denied his request for an upgrade of his UOTHC discharge to a general discharge.

10.  Army Regulation 635-200, paragraph 14-33b, then in effect, established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  A UOTHC discharge was normally considered appropriate.

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

12.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions could be issued only when the reason for separation specifically allowed such characterization.


DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished under Article 15 on four occasions and he had two suspended punishments vacated.  On 2 November 1978, the applicant's company commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, paragraph 14-33b(1).  The company commander stated that the applicant's performance had been far below standards and he had required constant supervision.  The convening authority approved his discharge and recommended the issuance of a UOTHC discharge.  He was properly discharged in accordance with pertinent regulations with due process.

2.  At the time, he also acknowledged he understood he could receive a UOTHC discharge and elected not to submit a statement in his own behalf.  He has provided no evidence to show his discharge is unjust.  He also provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would support upgrading his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would have jeopardized his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

4.  In view of the foregoing, there is no basis for granting his 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)                                         AR20100029262



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ABCMR Record of Proceedings (cont)                                         AR20100029262


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