IN THE CASE OF:	  

		BOARD DATE:	  6 November 2012

		DOCKET NUMBER:  AR20120007879 


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

2.  He states when he was discharged he was told that within a year he could have his discharge changed to honorable.  He had lost his DD Form 214 (Certificate of Release or Discharge from Active Duty) and wasn't able to get a copy of it until last year.  

3.  He provides two DD Forms 214.  

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.  Following prior active and inactive service, the applicant enlisted in the Regular Army on 12 July 1978.  

3.  His disciplinary history includes acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on three occasions for the following offenses:

* disobeying a lawful order (16 March 1979 and 11 January 1980)
* disobeying a lawful command
* breaking restriction (24 December 1979, 10 January 1980, and 11 January 1980)
* being incapacitated for the proper performance of duty

4.  His discharge packet is not available.  However, his DD Form 214 for the period ending 22 February 1980 shows he was discharged on 22 February 1980 under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-33b(1), due to misconduct – frequent incidents of a discreditable nature with civil or military authorities with a UOTHC discharge.  He completed 1 year, 6 months, and 19 days of active military service during the period under review.  

5.  His service record does not indicate he applied to the Army Discharge Review Board within its 15-year statute of limitations.

6.  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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents.  A discharge UOTHC is normally appropriate for a Soldier discharged for acts or patterns of misconduct.  

7.  Army Regulation 635-200, paragraph 3-7a, provides that 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.


8.  Army Regulation 635-200, paragraph 3-7b, states 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's record is void of any evidence and he did not provide any evidence which indicates he was told his discharge would be changed to honorable within a year.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.  

2.  The evidence of record shows he received three Article 15s for disobeying a lawful order, disobeying a lawful command, and breaking restriction.

3.  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, it appears the applicant’s discharge reflects his overall record of military service.  

4.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 14 for misconduct.  It appears the separation authority determined the applicant's overall record of service did not meet the standards of acceptable conduct and performance of duty to warrant a general or an honorable discharge.

5.  He has not presented sufficient evidence which warrants changing his UOTHC discharge to honorable.

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)                                         AR20120007879





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ABCMR Record of Proceedings (cont)                                         AR20120007879



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