BOARD DATE:	  13 September 2012

		DOCKET NUMBER:  AR20120005201 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge (HD).  

2.  The applicant states the UOTHC discharge he received does not accurately represent his overall record of service.  He also states this discharge unfairly prevents him from receiving services and medical care.  

3.  The applicant provides his DD Form 214 (Certificate of Release of Discharge from Active Duty) and a self-authored letter in support of his request.  

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 record shows he enlisted in the Regular Army on 9 May 1990. He was trained in and awarded military occupational specialty 29E (Radio Repairer).  

3.  The record confirms the applicant was advanced to the rank of private first class (PFC)/E-3, on 9 May 1991, and this is the highest rank/grade he attained while serving on active duty.  

4.  The applicant's record shows he served in Southwest Asia (SWA) from 
25 February through 6 July 1991.  It also shows he earned the Army Service Ribbon (ASR), National Defense Service Medal, SWA Service Medal with
2 bronze service stars, Kuwait Liberation Medal, and Sharpshooter Marksmanship Qualification Badge with Rifle Bar. 

5.  The applicant’s disciplinary record includes his acceptance of nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice on 27 July 1992, for failing to go to his appointed place of duty at the time prescribed on three separate occasions between 13 and 21 July 1992.  

6.  On 27 March 1992, the applicant was found guilty of battery in the District Court, Riley County, Kansas and was fined.  

7.  On 7 August 1992, the applicant appeared in the District Court of Riley County, Kansas and pled "nolo contendere" (I do not wish to contend) to two counts of child abuse.  On 19 September 1992, he was sentenced to a period of imprisonment of not less than 3 years or more than 10 years.

8.  On 27 October 1992, the unit commander notified the applicant of his intent to process him for separation under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14, by reason of misconduct (civil conviction).  

9.  On 7 June 1993, an administrative separation board convened at Fort Riley, Kansas to considered the applicant’s separation for misconduct.  The board found the applicant had been convicted by civil court and recommended his separation under the provisions of paragraph 14-5 (Civil Conviction), Army Regulation 635-200 (Personnel Separations) with a UOTHC discharge.  

10.  On 23 September 1993, the separation authority approved the findings and recommendations of the administrative separation board and directed the applicant’s immediate discharge.  

11.  On 7 October 1993, the Commander, U.S. Army Personnel Command approved the request to separate the applicant prior to completion of the appeal process based on his conviction by a civil court.  

12.  On 5 November 1993, the applicant was discharged under the provisions of chapter 14, Army Regulation 635-200, by reason of misconduct, with a UOTHC discharge, in the rank of private/E-1.  He completed a total of 2 years, 2 months, 8 days of creditable active military service and accrued 475 days of lost time due to imprisonment.  

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

14.  Army Regulation 635-200 provides the policies, standards, and procedures for the separation of enlisted personnel from the Army.  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.

15.  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 general discharge (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:

1.  The applicant's request to upgrade his UOTHC discharge to an HD because the UOTHC discharge does not represent his overall character of service and has resulted in his being denied veterans’ benefits and services has been carefully considered.  However, there is insufficient evidence to support his claim.  

2.  The evidence of record confirms a disciplinary history that includes his acceptance of NJP and two civil convictions for battery and child abuse.   

3.  The applicant's separation processing was accomplished in accordance with the applicable regulation, which included consideration of his case by an administrative separation board.  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.  Given the gravity of his misconduct, his overall record of service was not sufficiently meritorious to support the issuance of a GD or HD by the separation authority at the time of his discharge and does not support an upgrade of his discharge at this late date.  Therefore, absent evidence of error or injustice in the discharge process, there is an insufficient evidentiary basis to support an upgrade of 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)                                         AR20120005201



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120005201



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1