IN THE CASE OF:	  

		BOARD DATE:  5 February 2013

		DOCKET NUMBER:  AR20120013680 


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 a general discharge.

2.  He states he would like his discharge upgraded so he can be eligible for benefits.  He asks the Board to consider the previous 2 to 3 years of service he completed prior to the trouble.  He was young and made a bad mistake.  He is now 54 years of age, a truck driver with a 6-year clean driving record, and a good abiding citizen.  

3.  He provides no additional evidence.

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 military record shows he enlisted in the Regular Army (RA), in pay grade E-1, on 14 June 1978.  On the date of his enlistment in the RA, he was 19 years and 9 months of age.  He completed training and was awarded military occupational specialty 12B (Combat Engineer).  He served in Panama from 3 October 1978 through 24 September 1980.  He was promoted to pay grade E-4 on 1 May 1980. 

3.  He was honorably discharged on 25 February 1981 for the purpose of immediate reenlistment.  He reenlisted in the RA on 26 February 1981.

4.  He served in Germany from 14 June 1981 through 29 March 1982.

5.  On 30 March 1982, he was convicted by a special court-martial of one specification each of:

* committing assault upon a Soldier and intentionally inflicting grievous bodily harm on 16 December 1981
* unlawfully striking a different Soldier on the head with a night stick on 16 December 1981
* officially striking his superior noncommissioned officer in the head using his fists and kicking him in the sides of the head with his shod feet on 16 December 1981

6.  His sentence consisted of confinement at hard labor for 5 months, a forfeiture of $367.00 pay per month for 5 months, and reduction to pay grade E-1.  The sentence was approved and executed on 27 April 1982.

7.  He was reduced to pay grade E-1 on 30 March 1982.  He was again advanced to pay grade E-3 on 1 March 1983 and pay grade E-4 on 1 November 1983.

8.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on:

* 8 September 1983 - for failing to go to his appointed place of duty (physical training formation) on 1 September 1983.
* 2 March 1984 - for failing to go to his appointed places of duty (0700, 0730, 1300, and 1630 hour formations) on 21 February 1984

9.  On 23 April 1984, he was convicted by a summary court-martial of one specification of knowingly and wrongfully using some amount of marijuana between 9 to about 22 February 1984.  His sentence consisted of reduction to pay grade E-1, a forfeiture of $250.00 pay per month, and confinement at hard labor for 15 days.

10.  The complete facts and circumstances surrounding his discharge are not available for review with this case.  However, his record contains a DD Form 214 which shows he was discharged in pay grade E-1 on 7 June 1984 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 14.  His service was characterized as UOTHC.  

11.  On 7 May 1987, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200, chapter 14, in effect at the time, established the policy and prescribed procedures for separating members for misconduct.  Specific categories included minor disciplinary infractions, a pattern of misconduct, commission of serious offense, conviction by civil authorities, desertion, or absence without leave.  Action would be taken to separate a member for misconduct when it was clearly established that rehabilitation was impracticable or was unlikely to succeed.  An UOTHC discharge was normally considered appropriate.

13.  Army Regulation 635-200, paragraph 3-7b, stated a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory, but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record shows the applicant was punished twice under Article 15 for misconduct and convicted by special and summary courts-martial of serious offenses during his second enlistment.  His DD Form 214 shows he was discharged under the provisions of chapter 14 of Army Regulation 635-200 for misconduct on 7 June 1984.

2.  His contention that his youth made him do the wrong thing is without merit.  He was almost 20 years of age when he enlisted in the RA and 23 years of age when he was convicted by special and summary courts-martial.  There is no evidence he was any less mature than other Soldiers of the same or of a younger age who served successfully and completed their term of service.

3.  He has not shown his discharge was unjust or in error.  He provided no evidence or argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that would merit granting him an honorable or a general discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations in effect at the time with no procedural errors which would jeopardize his rights.  In the absence of evidence to the contrary, government regularity in the discharge process is presumed.

5.  His desire to have his discharge upgraded so that he can qualify for medical and/or other benefits administered by state and Federal authorities is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of an applicant qualifying for medical or other benefits

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)                                         AR20120013680



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ABCMR Record of Proceedings (cont)                                         AR20120013680



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