IN THE CASE OF:	  

		BOARD DATE:	  26 August 2014

		DOCKET NUMBER:  AR20140000364 


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, under honorable conditions discharge (GD).  

2.  The applicant states he did not understand that his discharge would not turn to a GD within 60-90 days after discharge or that he needed to apply for a discharge upgrade.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a Veteran's Service Officer's 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.  On 12 September 1978, the applicant enlisted in the Regular Army.  The highest rank/grade he held was private PV2/E-2.

3.  On 2 October 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being derelict in the performance of his duties on 7 September 1979.

4.  On 18 October 1979, he received NJP under the provisions of Article 15, UCMJ for breaking restriction.

5.  His record contains a statement from a staff sergeant indicating the applicant failed to meet the standards of a Soldier.  He had to be counseled daily on his appearance, room conditions, and job performance.  He had been dismissed from school and found sleeping on guard duty.  He had been given every opportunity to become a good enlisted member.

6.  A DA Form 4126-R (Bar to Reenlistment Certificate), dated 23 October 1979, shows the applicant's commander recorded two instances of NJP (for dereliction of duty and 17 days of being absent without leave (AWOL)).  He further recorded multiple instances of bad checks.  He provided additional factual and relevant indicators of the applicant's untrainability and unsuitability.  He stated the applicant was immature and a non-productive Soldier who did not seek self-improvement, nor did he display initiative when a self-improvement opportunity was granted.  He was removed from civilian education because of repeated misconduct and non-performance.  He did not respond to counseling and only performed under close and direct supervision.  The applicant typified the substandard Soldier in performance, appearance, conduct, and responsiveness.

7.  The applicant acknowledged he had been furnished a copy of the DA Form 4126-R and that he had been counseled and advised of the basis for his recommended bar to reenlistment.  He elected not to submit a statement in his own behalf.  The bar to reenlistment was approved.

8.  On 6 December 1979, the separation authority approved the applicant's discharge under the provisions of section V, paragraph 14-33b (1) and (3) of Army Regulation 635-200 (Enlisted Personnel Separations) and directed that he be issued a UOTHC Discharge Certificate.

9.  His complete discharge packet is not available for review.  However, his record contains a DD Form 214 which shows that on 21 December 1979 he was discharged for misconduct – frequent incidents of a discreditable nature with civil or military authorities and misconduct – an established pattern showing dishonorable failure to pay just debts.  He completed 1 year, 2 months, and 23 days of creditable service with time lost from 13-29 March 1979. 

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

11.  Army Regulation 635-200sets 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 consisting solely of minor military disciplinary infractions), a pattern of misconduct (consisting of discreditable involvement with civil or military authorities or conduct prejudicial to good order and discipline), 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 appropriate for a Soldier discharged under this chapter.

	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 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 available evidence does not support the applicant's request for an upgrade of his UOTHC to a GD.

2.  The Army does not have, and has never had, any policy to automatically upgrade a discharge based on the passage of time.

3.  He received NJP on multiple occasions for misconduct including 17 days of being AWOL.  A staff sergeant's statement indicated the applicant failed to meet the standard of a Soldier, had to be counseled daily on his appearance, room 
conditions, and job performance.  His commander indicated the applicant had multiple instances of bad checks; was a non-productive Soldier who did not display initiative for self-improvement; did not respond to counseling; only performed under close and direct supervision; and typified the substandard Soldier in performance, appearance, conduct, and responsiveness.

4.  Based on the applicant's record of misconduct, his service was not sufficiently meritorious to warrant an honorable for general discharge.

5.  In the absence of evidence to the contrary it is presumed the discharge proceedings were conducted in accordance with law and regulations applicable at the time, and that his rights were fully protected throughout the separation process.  The record supports the reason and authority for discharge shown on his DD Form 214.

6.  Therefore, there is an insufficient basis upon which to upgrade 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)                                         AR20140000364



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ABCMR Record of Proceedings (cont)                                         AR20140000364



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