IN THE CASE OF:	  

		BOARD DATE:	  13 September 2011

		DOCKET NUMBER:  AR20110005011 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states:

* he was ordered to say nothing at the time of his discharge proceedings
* he was not represented appropriately
* he attained the rank of specialist five/E-5
* racism was a factor in his discharge proceedings
* his performance was always noted as excellent
* he does not know what the "pattern of misconduct" could be
* since being discharged he has had only one offense which was driving under the influence
* he has been on Social Security disability since October 1999

3.  The applicant provides:

* self-authored statements
* VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative)
* 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 13 September 1977.  He completed training and was awarded the military occupational specialty 94B10 (Food Service Specialist).  The highest rank/grade he attained while serving on active duty was specialist five/E-5.

3.  The complete facts and circumstances of his discharge are not available for review in this case.

4.  The available records show the applicant received nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice on two occasions for the offenses indicated:

* on 6 December 1983, for failure to go at the prescribed time to his appointed place of duty and communicating a threat
* on 17 February 1984, for three instances of obscene language and leaving his appointed place of duty without authority

5.  On 27 March 1984, the applicant was barred from reenlistment.

6.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within the 15-year statute of limitations.

7.  The applicant provided self-authored statements regarding him military service, his DD Form 214, and VA Form 21-22, which appoints counsel.

8.  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.

9.  Army Regulation 635-200 (Personnel 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  

10.  Army Regulation 635-5-1 (Separation Program Designator (SPD) Codes) provides the specific authorities (regulatory or directive), reasons for separating Soldiers from active duty, and the SPD codes to be entered on the DD Form 214.  It provide, in pertinent part, that the 3-character SPD codes beginning with JK are the appropriate codes to assign to Soldiers separated under the provisions of Army Regulation 635-200, Chapter 14 for Misconduct.  The third character of the SPD code is determined based upon the specific form of misconduct for which the service member is being separated.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his UOTHC discharge to a general discharge was carefully considered and determined to lack merit.

2.  Notwithstanding the supporting statements provided by the applicant, post-service conduct alone is not a basis for upgrading a discharge.

3.  In the absence of evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is further presumed the applicant's discharge reflects his overall record of military service based on his narrative reason for separation.

4.  There is no evidence in the available record and the applicant did not provide any evidence which shows his discharge was in error or unjust.  Absent such evidence, there is no basis for granting the applicant's 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)                                         AR20110005011



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ABCMR Record of Proceedings (cont)                                         AR20110005011



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