IN THE CASE OF: BOARD DATE: 17 December 2009 DOCKET NUMBER: AR20090011825 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 that his undesirable discharge be upgraded to a general discharge. 2. The applicant states that he was under a lot of stress while on active duty because he was going through a divorce. He thought he was going to be given a general discharge, and he was surprised when he was issued a DD Form 214 which showed he was given an undesirable discharge. 3. The applicant does not provide anything 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 military records show that he enlisted in the Regular Army on 21 February 1978 and was awarded the military occupational specialty of infantryman. 3. He accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice, on three occasions for being absent without leave (AWOL) from 2 to 4 October 1979; for assaulting a polizei (German police officer) by striking him in the face with his closed fist; for being drunk and disorderly in a public place; and for disobeying a lawful command. 4. On 18 October 1981, the applicant was arrested by the military police and charged with communicating a threat against the military policeman (telling him that he was going to kill him); resisting apprehension (tried to drive off after he was told to come out of the car); and driving while intoxicated. On the military police report it was stated that after arrest and restraint, the applicant became belligerent and had to be placed in a jail cell. 5. On 21 October 1981, the applicant's commander notified him of his intent to recommend his discharge due to misconduct and of his rights in conjunction with that recommendation. Those rights included requesting a board of officers to consider his case because he could receive a characterization of service of under other than honorable conditions (UOTHC). The applicant waived his rights. 6. The appropriate authority approved the applicant's commander's recommendation. Accordingly, on 9 December 1981 the applicant was discharged UOTHC for misconduct. 7. Army Regulation 635-200 (Personnel Separations) 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 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 under other than honorable conditions is normally appropriate for a Soldier discharged under this chapter. However, the separation authority may direct a general discharge if such is merited by the Soldier’s overall record. Only a general court-martial convening authority may approve an honorable discharge or delegate approval authority for an honorable discharge under this provision of regulation. DISCUSSION AND CONCLUSIONS: 1. The applicant's repeated acts of serious misconduct certainly warranted a discharge UOTHC. 2. While the applicant states that he believed that he was going to be given a general discharge, he was given the right to a board of officers because he was being considered for a discharge UOTHC. 3. The applicant has not submitted any evidence that he was in the process of a divorce while he was on active duty. However, even if he had it would not form the basis for upgrading his discharge. The Army has resources for Soldiers going through divorces or experiencing other forms of life problems. Having a problem is never an excuse for acts of misconduct. 4. In view of the foregoing, there is no basis for granting the applicant's request. 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) AR20090011825 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090011825 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1