BOARD DATE:	  23 August 2012 

		DOCKET NUMBER:  AR20120003560 


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, in effect, that his discharge be upgraded to a general or honorable discharge (HD).

2.  The applicant states he made some bad choices such as the use of drugs and alcohol toward the end of his active duty service which placed him in bad situations that still affect his life today.  He further states that he has gone through a lot since his discharge and would like a reprieve.

3.  The applicant provides a one-page self-authored letter, four letters of character references, a copy of his driving record, and his DD Form 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 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 7 January 1975.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four/E-4.  He reenlisted on  16 September 1976

3.  Records show the applicant was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

   a.  20 October 1977, for wrongfully having in his possession a controlled substance, marijuana, and for assault of another Soldier;
   
   b. 6 February 1979, for wrongfully selling one pair of military vapor boots to a pawn shop; 

   c. 18 May 1979, for wrongfully having in his possession a controlled substance, marijuana;

d. 18 February 1981, for failure to report to the prescribed place of duty; and

e. 21 April 1981, for dereliction of duty.

4.  On 13 January 1981, the applicant’s duty status changed from present for duty (PDY) to confined civil authorities for first degree burglary.

5.  On 16 January 1981, the applicant duty status changed from confined civil authorities to PDY with a court date for 4 February 1981.

6.  On 26 June 1981, the applicant’s duty status changed from PDY to absent without leave (AWOL) during the period 26 June 1981 through 9 October 1981.

7.  The DD Form 214 shows the applicant was also AWOL during the period 25 November 1981 through 14 January 1982.

8.  On 10 October 1981, the applicant was apprehended by civil authorities in Fayetteville, North Carolina and later released to military authorities and transported to his unit.

9.  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 discharged on 14 January 1982 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of under other than honorable conditions (UOTHC).  This form also shows he completed 4 years, 10 months and 22 days of creditable active service and he accrued 158 days of lost time during the period under review.

10.  The applicant provided a one-page self-authored letter which essentially explained that he made some bad choices toward the end of his tour of duty.  He further states that he has gone through many changes and needs forgiveness.  He is no longer on drugs and alcohol and continues to practice better principles by being a productive citizen in the community.

11.  The applicant provided four character references, which essentially state that he is a good person, father, and spouse.  The references explained that the applicant displays respect for both family and friends and has a positive influence in his church and is a productive citizen in the community.  

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

13.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  Chapter 
10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

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.

15.  Army Regulation 635-200, paragraph 3-7a, states 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request, in effect, that his discharge be upgraded to a general or HD was carefully considered.  However, it was determined that there is insufficient evidence to support this request.
2.  During the period of service under review the applicant was punished on several occasions for acts of indiscipline and his DD Form 214 lists additional acts of AWOL.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.

4.  In the absence of evidence to the contrary it is presumed all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, which includes 158 days of lost time, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to a GD or HD.

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)                                         AR20120003560



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ABCMR Record of Proceedings (cont)                                         AR20120003560



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