IN THE CASE OF:	  

		BOARD DATE:	  30 August 2011

		DOCKET NUMBER:  AR20110003250 


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 a change in his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD).

2.  The applicant states his UOTHC discharge should be changed because:

   a.  he was told he would have all of the benefits of an honorable discharge; however, when he returned home he was told he would not;
   
   b.  his discharge was a reconciliation;
   
   c.  his hearing was so badly damaged he wants it fixed; and
   
d.  he was misled.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* DA Form 2-1 (Personnel Qualification Record – Part 1)
* DA Form 20 (Enlisted Qualification Record)
* DD Form 4 (Enlistment Contract - Armed Forces of the United States)
* FSMEDDAC Form 113 (Audiometric Evaluation Record)
* Standard Form 88 (Report of Medical Examination) dated 13 June 1974 - (page 4)


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 record shows he enlisted in the Regular Army on 17 June 1974.  He was trained in military occupational specialty 13B (Field Artillery Crewman).

3.  His official military personnel file (OMPF) shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on five separate occasions between 2 August 1974 through 7 June 1976 for offenses that include:

* failing to obey a lawful order
* dereliction
* wrongfully communicating a threat
* breaking restriction
* failing to go at the prescribed time to his appointed place of duty
* leaving his appointed place of duty without authority
* wrongfully possessing of one bag of marijuana

4.  The applicant's DA Form 2-1 shows he was advanced to the rank/grade of private first class (PFC/E-3) on 3 December 1976, the highest rank he held while serving on active duty.  It also shows he was reduced to private (PV2/E-2) on 14 January 1976 and private (PVT/E-1) on 29 January 1976.

5.  The applicant's DA Form 20, item 44 (Time Lost Under Section 972, Title 10, U.S. Code and Subsequent to Normal Date ETS [Expiration Term of Service]), shows he accrued 9 days time lost from 5 - 13 July 1976, due to his imprisonment.  Item 30 (Remarks) shows on or about 5 July 1976 the applicant was confined to the Comanche County Jail, Lawton, Oklahoma, pending charges for possession of marijuana.  It also shows he was found guilty, sentenced to     10 days confinement, and returned to or present for duty on 14 July 1976.
6.  On an unknown date, the applicant was notified that action was being taken to eliminate him from the Army under the provisions of Army Regulation 635-200 due to his conviction by civil authorities.  Having been advised of the basis for the contemplated separation, its effects, and the rights available to him, he made the following election:

* waived consideration of his case by a board of officers
* waived representation by counsel
* not to make a statement in his own behalf 
* not to appeal his civilian conviction

7.  On 7 October 1976, the unit commander recommended discharge of the applicant under the provisions of Army Regulation 635-206 by reason of civil conviction.

8.  On 18 November 1976, the separation authority approved the recommendation to discharge the applicant and directed issuance of a
DD Form 258A (Undesirable Discharge Certificate).  On 3 December 1976, he was discharged accordingly.

9.  The DD Form 214 confirms he completed 2 years, 5 months, and 8 days of creditable active service.  It also shows he received a UOTHC discharge.

10.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge.

11.  Army Regulation 635-206 (Personnel Separations-Discharge-Misconduct (Fraudulent Entry, Conviction by Civil Court, AWOL, Desertion), in effect at the time, provided the authority for the administrative separation or retention of enlisted personnel who had committed an act and or acts of misconduct.  Section III of that regulation prescribed the standards and procedures for processing cases of individuals who, during their current term of active military service, had been convicted by a civil court.  A UD was normally considered appropriate for members separated under this provision of the regulation.

12.  Army Regulation 635-200 (Personnel Separations), 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded to a GD.
2.  The evidence of record confirms the applicant was found guilty and sentenced to 10 days in civilian confinement for possession of marijuana.

3.  The evidence of record confirms his separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service for the charges he was convicted of and his prior misconduct and does not support 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 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)                                         AR20110003250



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ABCMR Record of Proceedings (cont)                                         AR20110003250



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