IN THE CASE OF: BOARD DATE: 8 June 2010 DOCKET NUMBER: AR20090020915 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 his discharge under other than honorable conditions (UOTHC) be upgraded to a general discharge. 2. The applicant states the following: * he would like his discharge upgraded to a general discharge * he would like to become eligible for medical benefits * he is unemployed and in need of medical care 3. The applicant provides a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and his DD Form 214 (Report of Separation from Active Duty) in support of his application. 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 enlisted in the Regular Army on 28 July 1977 for a period of 3 years. 3. The applicant accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, on three separate occasions between January 1978 and July 1978 for the following offenses: * wrongfully possessing marijuana and wrongfully possessing paraphernalia * failing to go to his appointed place of duty * breaking restriction 4. On 23 June 1978, the applicant was convicted by a summary court-martial of being absent without leave (AWOL) from 17 June 1978 to 19 June 1978 and breaking restriction. He was sentenced to confinement at hard labor for 20 days. 5. The applicant's discharge packet is not available for review. However, his DD Form 214 indicates he was discharged on 15 August 1978 under the provisions of Army Regulation 635-200 (Personnel Separations), paragraph 14-33b(1), for misconduct based on frequent incidents of a discreditable nature with civil or military authorities. He was issued a UOTHC discharge. He had 1 year and 2 days of creditable active service with 16 days of lost time due to AWOL and confinement. 6. There is no indication that the applicant applied to the Army Discharge Review Board within its 15-year statute of limitations. 7. Army Regulation 635-200 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 included frequent incidents of a discreditable nature with civil or military authorities; an established pattern for shirking, an established pattern showing dishonorable failure to pay just debts, and an established pattern showing dishonorable failure to contribute adequate support to dependents. A discharge under other than honorable conditions is normally appropriate for a Soldier discharged for acts or patterns of misconduct. However, the discharge authority may direct an honorable or general discharge if such are merited by the Soldier's overall record. 8. 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's request to upgrade his discharge to a general discharge to become eligible for medical benefits is acknowledged. However, this basis is not sufficiently mitigating to warrant an upgrade of his discharge. 2. In the absence of evidence to the contrary, the applicant's discharge processing is presumed to have been administratively correct and in conformance with applicable regulations. 3. The applicant's service record shows he received three Articles 15 and one summary court-martial. Also, his service record shows 16 days of lost time. It appears his chain of command determined that his overall military service did not meet the standards for a general discharge as defined by Army Regulation 635-200 and his service was appropriately characterized as under other than honorable conditions. 4. The evidence of record does not indicate the actions taken in his case were in error or unjust; therefore, 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) AR20090020915 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20090020915 4 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1