IN THE CASE OF:	  

		BOARD DATE:	  29 November 2011

		DOCKET NUMBER:  AR20110010202 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  He states:

* his marriage was in jeopardy because he was stationed in Korea
* he made some mistakes because he was young and dumb
* his wife divorced him because they could not be together

3.  He provides his DD Form 214 (Report of Separation 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 was born on 7 July 1954 and enlisted in the Regular Army on   8 July 1971 at the age of 17 years and 1 day for three years.  He reenlisted on 
28 June 1974.

3.  The applicant's record documents no acts of valor or service warranting special recognition.

4.  Item 5 (Overseas Service) shows he was served in:

* Korea from 23 July 1972 to 28 June 1973
* Alaska from 19 September 1975 to 16 December 1975

5.  His DA Form 2-1 (Personnel Qualification Record) shows in item 35 (Current and Previous Assignments) he was assigned to:

* Company B, Headquarters, Fort Huachuca, AZ from 18 September 1974 to 1 August 1975 
* Company D, 172nd Support Battalion, 172nd Brigade, Alaska 23 September to 2 October 1975
* Company D, 172nd Support Battalion, 172nd Brigade, Ft. Richardson, AK from 3 October to 5 October 1975 in principal duty status absent without leave (AWOL)
* Company D, 172nd Support Battalion, 172nd Brigade, Ft. Richardson, AK from 6 October to 9 October in principal duty status confinement
* Company D, 172nd Support Battalion, 172nd Brigade, Ft. Richardson, AK from 10 October to 7 November 1975 in principal duty status AWOL
* Company D, 172nd Support Battalion, 172nd Brigade, Ft. Richardson, AK from 8 November to 15 December 1975 in principal duty status dropped from rolls
* Personnel Control Facility, Ft. Ord, CA from 16 December 1975 to 29 January 1976 in principal duty status dropped from rolls
* Discharged on 30 January 1976 in principal duty status undesirable


6.  His record contains DA Forms 4187 (Personnel Actions) that show on:

* 3 October 1975, his duty status changed to AWOL
* 6 October 1975, his duty status changed to AWOL
* 8 October 1975, his duty status changed to Confined Military Authorities
* 10 October 1975, his status changed to AWOL


7.  The specific facts and circumstances surrounding his discharge processing are not available for review.  However, the available evidence includes a properly-constituted DD Form 214 that contains the authority and reason for his discharge.  The DD Form 214 shows he was discharged on 30 January 1976 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, administrative discharge conduct triable by court-martial, with the issuance of a UOTHC discharge.  The DD Form 214 he was issued confirms he completed 4 years, 4 months, and 4 days of total active service.  He had 74 days of lost time and 32 days of excess leave.

8.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense(s) charged, type of discharge normally given under the provisions of this chapter, the loss of Veterans Administration benefits, and the possibility of prejudice in civilian life due to such a characterization service.  An Under Other Than Honorable Conditions Discharge Certificate would normally be furnished an individual who was discharged due to conduct triable by court-martial.

10.  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 (emphasis added) or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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.  


DISCUSSION AND CONCLUSIONS:

1.  Although the applicant’s record is void of the specific facts and circumstances surrounding his discharge processing, it does contain a properly-constituted
DD Form 214 that identifies the authority, reason, and the characterization of the applicant's service.

2.  The evidence of record shows a total of 74 days of lost time and 32 days of excess leave.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel.

3.  His record shows he was 17 years of age at the time of his enlistment and he was 21 years of age at the time of his offenses.  Although his record shows that he served in Korea, there is no evidence that indicates his assignment to Korea, family matters, or divorce contributed to his acts of misbehavior or misconduct.  To the contrary, he reenlisted after he departed Korea, and his misconduct started after he reenlisted.

4.  There is no evidence that shows he was not properly and equitably discharged in accordance with the regulations in effect at the time, that all requirements of law and regulations were not met, or that the rights of the applicant were not fully protected throughout the separation process.  Absent such evidence, regularity must be presumed in this case.

5.  In view of the above, there is no basis for granting him relief.

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)                                         AR20110010202



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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