BOARD DATE:	  8 December 2011

		DOCKET NUMBER:  AR20110011966 


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.  

2.  He states, in effect:

* he provided general support for the 101st Airborne Division
* he couldn't get a transfer
* the major and the staff didn't get along so he didn't want to be in the Army any more
* he was too young and dumb
* he needs his discharge upgraded because he's getting older and he needs medical care but he can't pay for it

3.  He provides no additional documents.  

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 service record shows he was born on 8 November 1959 and he enlisted in the Regular Army on 30 December 1977 at age 18.  Upon completion of initial entry training, he was awarded military occupational specialty 68G (Aircraft Structure Repairer).  The highest rank/pay grade he attained while on active duty was private first class/E-3.  However, at the time of separation he held the rank/pay grade of private/E-1.  

3.  Following initial entry training, he was reassigned to the 507th Transportation Company at Fort Campbell, KY in June 1978 as an Airframe Repair Helper.  

4.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice on three occasions for failing to go at the time prescribed to his appointed place of duty and for behaving with disrespect towards a major.

5.  His disciplinary history also shows he was convicted by a summary 
court-martial on:

   a.  11 April 1979, for being absent without leave (AWOL) from 2 to 17 March 1979.  He was sentenced to confinement at hard labor for 30 days.
   
   b.  31 July 1979, for being AWOL from 9 May to 16 July 1979.  He was sentenced to confinement at hard labor for 30 days.  

6.  His notification of pending separation action under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-33b(1) for misconduct – frequent incidents of a discreditable nature with civil or military authorities is not available.  His service record shows he consulted with legal counsel, waived consideration of his case by a board of officers, waived a personal appearance, and did not submit statements in his own behalf.

7.  The separation authority waived rehabilitation and directed that the applicant be discharged under the provisions of Army Regulation 635-200, chapter 14 for misconduct with the issuance of a UOTHC Discharge Certificate.  

8.  On 11 September 1979, he was discharged after completion of 1 year, 4 months, and 17 days with 115 days of lost time.  


9.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

10.  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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record.

11.  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.

12.  Army Regulation 635-200, paragraph 3-7b, states 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’s statements in regard to a major and the staff not getting along are acknowledged.  However, the applicant had many legitimate avenues (chain of command, chaplain, and inspector general) through which to obtain assistance or relief without committing the misconduct which led to his discharge.  

2.  His service record is void of evidence which supports his contention that his unit would not transfer him.  

3.  Records show the applicant was age 18 at the time of his first offense.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed their military service obligation.  


4.  The fact that the applicant is currently experiencing difficulty obtaining healthcare is unfortunate.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

5.  His service record shows he received three Article 15s and convictions by two summary courts-martial.  It appears the applicant's chain of command determined the applicant's overall military service did not meet the standards of either a general or honorable discharge and appropriately issued him a UOTHC 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)                                         AR20110011966



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ABCMR Record of Proceedings (cont)                                         AR20110011966



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