BOARD DATE:	  16 July 2013

		DOCKET NUMBER:  AR20120022594 


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.

2.  The applicant states he wants an upgrade of his UOTHC discharge.

3.  The applicant provides no additional documents.

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 initially enlisted in the Regular Army (RA) on 28 July 1983 and continued to serve until he was honorably discharged on 20 May 1986 for the purpose of immediate reenlistment.  He completed 2 years, 9 months, and 23 days of active creditable service during this period of service.

3.  On 21 May 1986, the applicant reenlisted in the RA. 

4.  He accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) for dereliction of his duties by negligently failing to give a urine specimen on 5 February 1988.

5.  His disciplinary history shows he was formally counseled on three separate occasions for failing to report to duty on 21, 23, and 28 June 1988.

6.  On 4 August 1988, a bar to reenlistment was initiated against the applicant and it was approved on 8 August 1988.

7.  On 18 November 1988, the applicant underwent a mental status evaluation and the results showed he demonstrated:

* normal behavior and thought content
* he was fully alert and oriented
* an unremarkable mood or affect
* a clear thinking process
* good memory
* he had the mental capacity to understand and participate in separation proceedings
* he was psychiatrically cleared for administrative actions deemed appropriate by his command

8.  Pursuant to his pleas, on 26 October 1980 a special court-martial (SPCM) convicted the applicant of violating Article 112a (wrongful use of marijuana) and Article 80 (wrongful attempt to submit a false official statement) of the UCMJ.  

9.  On 11 January 1989, the applicant’s commander informed him of his intent to separate him under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), paragraph 14-12b, for patterns of misconduct.  The commander cited the applicant's following disciplinary history as the bases for his recommendation:

* SPCM conviction
* NJP record
* Bar to reenlistment

10.  On 11 January 1989, the applicant completed his election of rights by:

* waiving consideration of and personal appearance before an administrative separation board (board of officers)
* requesting representation by counsel
* electing not to submit any statements in his own behalf

11.  On 28 February 1989, the separation authority approved the separation action and directed the applicant be discharged under other than honorable conditions.  Accordingly, on 6 April 1989 the applicant was discharged accordingly.

12.  The DD Form 214 issued to the applicant confirms he was discharged under the provisions of Army Regulation 635-200, paragraph 14-12b, by reason of "misconduct- pattern of misconduct."  It also shows he completed 5 years, 
5 months, and 25 days of total creditable active service and accrued lost time from 26 October 1988 – 9 January 1989.

13.  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.

14.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

   a.   Chapter 14 establishes policy and prescribes procedures for separating members for misconduct.  Specific categories include minor disciplinary infractions, a pattern of misconduct, commission of a serious offense, and convictions by civil authorities.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  A discharge UOTHC is normally considered appropriate.

	b.  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.

	c.  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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's request for an upgrade of his UOTHC discharge has been carefully considered.

2.  The evidence of record confirms the applicant’s separation processing was accomplished in accordance with the applicable regulation.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  His extensive disciplinary history clearly diminished the overall quality of his service below that meriting an honorable or general discharge. The applicant's record did not support the issuance of an honorable or general discharge by the separation authority at the time of his discharge, nor does it support an upgrade at this late date.  

3.  In view of the foregoing, his request should be denied.

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)                                         AR20120022594





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ABCMR Record of Proceedings (cont)                                         AR20120022594



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