IN THE CASE OF:
BOARD DATE: 12 July 2011
DOCKET NUMBER: AR20100030010
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 (UOTHC) be upgraded.
2. The applicant states his discharge was supposed to be upgraded.
3. The applicant did not provide any additional evidence.
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 on 20 July 1978 and was awarded the military occupational specialty of construction equipment repairer.
3. On 11 June 1981, a bar to reenlistment was initiated against the applicant. In the bar his commander stated the applicant had accepted nonjudicial punishment on four occasions as follows:
* 16 March 1980 disobeying an order and communicating a threat
* 31 March 1980 fighting
* 25 September 1980 assault
* 5 May 1981 disobeying an order, failing to obey an order, resisting apprehension, assault, communicating a threat, and improper wearing of his uniform
4. The applicant's discharge packet is not contained in his records. However, on 26 February 1982 he was given a UOTHC discharge due to misconduct for frequent incidents of a discreditable nature with civil or military authorities under the provisions of Army Regulation 635-200 (Enlisted Separations), chapter 14.
5. 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. When discharge is ordered under this authority, a UOTHC discharge is considered appropriate.
6. 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.
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 Soldier's separation specifically allows such characterization.
DISCUSSION AND CONCLUSIONS:
1. There is no and has never been any provision to automatically upgrade a discharge based on the passage of time.
2. While the applicant's discharge packet is not contained in his records, he received nonjudicial punishment four times for disobeying an order (twice), communicating a threat (twice), fighting, assault (twice), failing to obey an order, resisting apprehension, and improper wearing of his uniform.
3. Such repeated, serious misconduct certainly formed the basis for giving the applicant a UOTHC discharge for a pattern of misconduct.
4. As such, a presumption of regularity is applied, that what the Army did was proper and just. In view of the foregoing, there is no basis for granting the applicant's request to upgrade his discharge to either a general or honorable 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 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) AR20100030010
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ABCMR Record of Proceedings (cont) AR20100030010
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