IN THE CASE OF:	  

		BOARD DATE:  5 June 2012

		DOCKET NUMBER:  AR20110024862 


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 to a general discharge (GD).

2.  The applicant states, in effect, he was too young, dumb and drunk, and unable to assess what he was doing.  

3.  He describes the summary of events that happened during his course of active duty.  He further states once again that he was a stupid young kid who did not know any better or how to adjust to military life.  However, if he had the chance to really know how military life would have been for him, he would have never made those mistakes or drunk heavily.  He asked that his request be fully considered and states he is ashamed of what he did and asks for the Board's kindness in the matter of upgrading his discharge.

4.  The applicant provides the following documents:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* California Identification Card
* 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 enlisted in the Regular Army on 10 February 1978, and was trained in and awarded military occupational specialty (MOS) 16C (Hercules Fire Control Crewman).

3.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for the following:

   a.  12 July 1978 and 11 August 1978, for being inattentive while posted as a sentinel guard;
   
   b.  11 May 1979, for disobeying a lawful order from a commissioned officer on two occasions;
   
   c.  3 July 1979, for possession of marijuana residue; and 
   
   d.  7 October 1980, for larceny of government property. 

4.  On 26 March 1979, a special court-martial (SPCM) found the applicant guilty of committing the following offenses:  being drunk and disorderly; communicating a threat to another Soldier; and assault on another Soldier on three occasions.  The resulting sentence was confinement at hard labor for 45 days, a forfeiture of $210.00 pay for 2 months, and reduction to private/E-1.  The sentence was adjudged on 26 March 1969 and approved on 4 April 1979.

5.  On 1 December 1980, a summary court-martial (SCM) found the applicant guilty of violating Article 86 (failure to go to his appointed place of duty) and Article 134 (wrongful possession of marijuana).  The resulting sentence was a forfeiture of $200.00 pay, reduction to private/E-1, and confinement at hard labor for 20 days.  The sentence was approved on 1 December 1980. 


6.  On 9 December 1980, the applicant was notified by his unit commander of the intent to initiate separation action against him under the provisions of paragraph 14-33(b), Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), for misconduct, frequent incidents of a discreditable nature with civil or military authorities.  The unit commander cited the applicant’s disciplinary history that included an SCM and SPCM conviction and acceptance of NJP on five separate occasions.

7.  On 10 December 1980, after being advised of the basis for the contemplated separation action and its effects, the applicant completed a request for conditional waiver and requested consideration of his case by a board of officers with representation by counsel.  

8.  On 20 February 1981, an administrative separation board convened to consider the applicant’s case.  After hearing all testimony and reviewing all evidence, the board found by a preponderance of the evidence that each allegation in the notice of separation was supported.  Based on its findings, the board recommended the applicant be separated from the service with a UOTHC discharge.

9.  On 4 March 1981, the separation authority approved the applicant's separation for misconduct under the provisions of Army Regulation 635-200, chapter 14-33b(1), and directed the issuance of a UOTHC discharge.  On 6 March 1981, the applicant was discharged accordingly.

10.  The DD Form 214 issued to the applicant upon his discharge shows he held the rank of private/E-1 on the date of his discharge and he completed a total of 3 years and 2 days of creditable active military service and accrued 25 days of time lost due to confinement.  

11.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15 year statute of limitations.

12.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel.  Chapter 14 establishes policy and prescribes procedures for separating personnel for misconduct because of minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, conviction by civil authorities, desertion, and absence without leave.


13.  Paragraph 14-3 of Army Regulation 635-200 contains guidance on characterization of service for members separated under chapter 14.  It states that a UOTHC discharge is normally appropriate for a Soldier discharged under this chapter.  The separation authority may direct a GD if such is merited by the Soldier's overall record.  It further states a characterization of honorable is not authorized unless the Soldier's record is otherwise so meritorious that any other characterization clearly would be inappropriate.  

14.  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.  The applicant argues his discharge should be upgraded to a GD because he was too young, dumb and drunk, and was unable to assess what he was doing.  

2.  The evidence confirmed he was discharged for misconduct due to frequent incidents of a discreditable nature with civil or military authorities which included five NJPs, an SPCM, and an SCM.

3.  The applicant's separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process. 

4.  By regulation, a UOTHC discharge is normally appropriate for a member separated by reason of misconduct.  It is clear his record of misconduct clearly diminished his overall record of service below that meriting a fully honorable discharge.  Therefore, it would not be appropriate to upgrade his 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)                                         AR20110024862



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ABCMR Record of Proceedings (cont)                                         AR20110024862



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