IN THE CASE OF:	  

		BOARD DATE:	    13 May 2010

		DOCKET NUMBER:  AR20090019247 


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 a general under honorable conditions discharge.

2.  The applicant does not provide any statement.

3.  The applicant does not provide any 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 records show that he enlisted in the Regular Army on 24 March 1987 and was awarded military occupational specialty 41C (fire control instrument repairer).

3.  On 22 January 1988, the applicant departed absent without leave (AWOL).

4.  On 24 January 1988, while in an AWOL status, he was arrested by civil authorities for burglary for stealing three car radios, four tires, and one pair of
T-tops.

5.  On 26 September 1988, the applicant's commander notified him of his intent to recommend his discharge for misconduct and of his rights in conjunction with that recommendation.  The applicant waived his rights.

6.  The applicant's commander then forwarded his recommendation to discharge the applicant.  That recommendation was approved by the proper authority and, on 8 November 1988, the applicant was given a UOTHC discharge.

7.  There is no evidence that the applicant ever applied to the Army Discharge Review Board (ADRB) for an upgrade to his UOTHC discharge within that board's 15-year statute of limitations.

8.  Army Regulation 635-200 (Personnel Separations - Enlisted Personnel) 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, commission of a serious offense, convictions by civil authorities, desertion or absence without leave.  Action will be taken to separate a member for misconduct when it is clearly established that rehabilitation is impracticable or is unlikely to succeed.  Paragraph 1-18 of that regulation specifies that Soldiers being considered for separation under the provisions of chapters 13, 14, and 15 are entitled to have a board of officers consider their cases unless that right is waived.  When discharge is approved under this chapter, a UOTHC discharge is normally considered appropriate

9.  Army Regulation 635-200, 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.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  The applicant was convicted of burglary while he was in an AWOL status.  Such serious misconduct certainly warranted a UOTHC discharge.

2.  The evidence shows that the applicant's rights were protected throughout the discharge process.

3.  The applicant has not provided any argument which would suggest an error or injustice in the discharge proceedings and none are noted.

4.  In view of the foregoing, there is no basis for granting the applicant’s requested relief.

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)                                         AR20090019247



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ABCMR Record of Proceedings (cont)                                         AR20090019247



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