IN THE CASE OF:	  

		BOARD DATE:	  2 February 2012

		DOCKET NUMBER:  AR20110015937 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he was told he could get an upgrade of his discharge if he applied.  He feels it is an injustice not to be able to get medical benefits.  He contends that he was young and addicted to drugs.  The biggest mistake of his life was getting court-martialed and discharged UOTHC.

3.  The applicant provides no additional documentation.

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.  On 2 February 1982, the applicant, at 18 years and 11 months of age, enlisted in the Regular Army.  He was subsequently assigned to Company D, 6th Battalion, 1st Infantry Training Brigade, located at Fort Benning, Georgia for one station unit training (OSUT) in military occupational specialty 11B (Infantryman).  While in OSUT he accepted the following nonjudicial punishments (NJPs):

	a.  14 April 1982: for failure to go to his appointed place of duty;

	b.  16 April 1982: for selling uniform items that were the property of the U.S. Army; for failing to obey a lawful order; and for failing to go to his appointed place of duty; and

	c.  24 April 1982: for dereliction of duty

3.  On 1 June 1982, the applicant was assigned for duty as an infantryman with Company C, 1st Battalion, 28th Infantry Regiment, located at Fort Riley, Kansas.

4.  Records show the applicant was absent without leave (AWOL) from 10 to 
15 August 1982; however, no disposition is in the available record.

5.  On 16 November 1982, the applicant was convicted by a special court-martial of assault on his superior noncommissioned officer, disrespect in language towards his superior noncommissioned officer, disobeying a lawful order, unlawfully striking another Soldier, and being disorderly in quarters by discharging a fire extinguisher.  He was sentenced to confinement at hard labor for 5 months, forfeiture of $367.00 pay per month for 5 months, and reduction to private, pay grade E-1.

6.  On 20 December 1982, the applicant was convicted in civilian court of burglary, unlawful deprivation of property, and two counts of criminal damage of property.  He was sentenced to custody of Secretary of Corrections for not less than 2 years or more than 5 years, and to 1 year in jail, sentences to run concurrently.  He was immediately returned to military confinement.

7.  On 17 January 1983, the applicant again appeared in civilian court where he was convicted of burglary and theft.  He was sentenced to custody of the Secretary of Corrections for not less than 2 years or more than 5 years, to run concurrently with his previous sentence.  He was again returned to military confinement.



8.  On 2 March 1983, the applicant's company commander notified him that he was intending to take action to discharge him based on his civilian convictions.  The commander informed him that he could receive any of the following characterizations of service: honorable, under honorable conditions, or UOTHC.

9.  On 9 March 1983, the applicant consulted with counsel concerning his rights.  He waived consideration by a board of officers and indicated he would submit a statement in his own behalf; however, none is contained in the available records. He further stated he intended to appeal his civilian conviction(s).  He also indicated that he understood he could expect to encounter extreme prejudice in civilian life as a result of a discharge that was other than honorable.

10.  On 10 March 1986, the applicant’s commander recommended separation from the service under the provisions of Army Regulation 635-200, Chapter 14, due to his civilian convictions, special court-martial, and NJP's.  The commander requested waiver of the rehabilitative transfer requirement in this case.

11.  On 4 April 1983, the appropriate authority approved the recommendation for discharge and directed that the applicant be issued an UOTHC discharge.  On 
8 April 1983, the applicant was accordingly discharged.  He had completed 
9 months of creditable active duty service.

12.  On 26 September 1986, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

13.  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 include 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends that his UOTHC discharge should be upgraded because he feels it is an injustice not to be able to get medical benefits.  He further contends that he was young and addicted to drugs.

2.  The record shows the applicant accepted three NJPs; was convicted by a special court-martial; and was twice convicted in a civilian court.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.

4.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

5.  There is no evidence of record showing that any of his misconduct or criminal acts were the result of his youth or due to an addiction to drugs.

6.  The applicant's desire to obtain veterans medical benefits is not justification to upgrade his discharge.

7.  In view of the foregoing, 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)                                         AR20110015937





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ABCMR Record of Proceedings (cont)                                         AR20110015937



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