IN THE CASE OF:
BOARD DATE: 25 September 2012
DOCKET NUMBER: AR20120003474
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 discharge under other than honorable conditions (UOTHC) be upgraded to honorable.
2. The applicant states he served ten plus years of prior honorable service and also served in Southwest Asia.
3. The applicant provided copies of three DD Forms 214 (Certificate of Release or Discharge 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 applicants 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 applicants failure to timely file. In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.
2. The applicants record shows after having prior enlisted service in the Regular Army, he enlisted in the U.S. Army Reserve (USAR). He completed basic combat and advanced individual training and was awarded military occupational specialty 63H (Track Vehicle Repairer). On 5 May 1990, he entered active duty in the Active Guard Reserve program.
3. The applicant's record contains a DA Form 2166-7 (NCO Evaluation Report) dated 1 July 1993, where his rater stated he had a performance, behavior, adaptability, and attitude problem. The senior rater stated in the evaluation report the applicant was performing at a low level and his off duty conduct was disgraceful and unacceptable.
4. The facts and circumstances of the applicant's discharge are not available for review with this case. However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 30 July 1993, under the provisions of chapter 14 of Army Regulation 635-200 (Personnel Separations) for misconduct with a character of service of UOTHC. This form also shows he completed 3 years, 2 months, and 19 days of creditable active service and accrued 7 days of lost time during the period under review.
5. The applicant provided two other copies of his DD Forms 214. His initial
DD Form 214 shows he enlisted in the Regular Army on 4 November 1974, and was honorably discharged on 14 September 1977, after serving 2 years,
10 months, and 11 days. His second DD Form 214 shows he reenlisted on
15 September 1974, and was honorably released from active duty and transferred to the USAR after serving 8 years, 1 month, and 18 days.
6. There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.
7. 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.
8. 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.
DISCUSSION AND CONCLUSIONS:
By regulation, a UOTHC discharge is normally appropriate under the regulatory guidance. Although the applicants record indicates he served honorably during two previous enlistments, his last period of service wherein he had a performance, behavior, adaptability, and a serious misconduct problem clearly diminished his overall record of service below that meriting a fully honorable or a general 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) AR20120003474
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ABCMR Record of Proceedings (cont) AR20120003474
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