IN THE CASE OF:	  

		BOARD DATE:	  7 February 2012

		DOCKET NUMBER:  AR20110014936 


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 regrets the errors and decisions he made during his youth, which led to his failure as a Soldier and his UOTHC discharge
* To serve our country is a privilege and honor; if he could do things over things would be different
* the Soldiers who returned from Vietnam have impacted his life more now than they did back then
* his gratitude stretches forth to the Soldiers serving at Custer Hill, 1st Infantry Division, Fort Riley, Kansas

3.  The applicant provides a self authored statement.

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 official military personnel record shows he enlisted in the Regular Army, on 13 September 1976, at age 17.

3.  On 17 March 1977, he received non-judicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for being absent without leave (AWOL) from 1 to 9 March 1977.

4.  Special Court-Martial (SPCM) Order Number 49, issued by Headquarters, 1st Infantry Division and Fort Riley, KS, shows on 31 May 1977 he pled not guilty but he was found guilty of violating Article 86 of the UCMJ by being AWOL from
7 April to 6 May 1977. 

5.  On 29 July 1977, his commander recommended his separation under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 13-5, by reason of misconduct, for frequent acts of a discreditable nature.

6.  On the same date, he was advised of the rights available to him and the effects of a general discharge.  He was also informed that he may expect to encounter substantial prejudice in civilian life in the event a general discharge was issued to him.  He was advised of his right to counsel, his right to an administrative hearing by a board of officers, his right to submit a statement in his own behalf, and his right to be represented by counsel at a hearing.  The commander also explained the applicant's waiver privileges and the procedures for withdrawal of a waiver.  The applicant waived his rights.  He further understood that he would be ineligible to apply for enlistment in the United States Army for a period of 2 years after discharge.  He stated he would submit a statement on his behalf; however, his record is void of any such statement.

7.  On 3 August 1977, the separation authority waived further rehabilitative efforts and directed that the applicant be separated under the provisions of Army Regulation 635-200, paragraph 13 and issuance of a UOTHC discharge due to misconduct.



8.  On 9 August 1977, he was discharged accordingly.  His DD Form 214 shows:

* his service was characterized as UOTHC
* he was discharged under the provisions of Army Regulation 635-200, paragraph 13-5a(1) 
* he had 127 days of lost time 

9.  Army Regulation 635-200 (Personnel Separations), chapter 13 applied to separation for unfitness and unsuitability.  At that time, paragraph 13-5 provided for the separation of individuals for unsuitability whose record evidenced apathy (lack of appropriate interest), defective attitudes, and an inability to expend effort constructively.  When separation for unsuitability was warranted an honorable or general discharge was issued as determined by the separation authority based upon the individual’s entire record.

10.  There is no evidence that the applicant applied to the Army Discharge Review Board for upgrade of his discharge within its 15-year statute of limitations.

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, 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.  

DICSCUSSION AND CONCLUSIONS:
1.  The applicant contends his UOTHC discharge should be upgraded to a general discharge.

2.  His discharge was accomplished in compliance with applicable regulations and there is no indication of procedural errors or injustice that would have jeopardized his rights.  The available evidence is insufficient for upgrading his UOTHC discharge.

3.  His record reveals a disciplinary history that includes an SPCM, acceptance of NJP under Article 15, UCMJ, and 127 days of lost time due to being AWOL.
4.  Records show the applicant was age 17 when he enlisted and age 18 at the time of his offense(s).  However, there is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed their military service obligation.

5.  In view of the foregoing, he is not entitled to a general 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)                                         AR20100000831



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ABCMR Record of Proceedings (cont)                                         AR20110014936



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