IN THE CASE OF: BOARD DATE: 25 February 2016 DOCKET NUMBER: AR20150007683 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 discharge (GD). 2. The applicant states, in effect, his discharge reflects a moment in time when he was immature and made a mistake. However, he believes the military failed to assist him with addressing his problem with alcohol and depression. Since leaving the service he has worked hard and raised his family to the best of his ability. He should not suffer the rest of his life as it continues to impact his life negatively to this day. 3. The applicant provides no additional evidence 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. On 3 June 1975 the applicant enlisted in the Regular Army. 3. His DA Form 2-1 (Personnel Qualification Record) shows he was absent without leave (AWOL) from: * 31 July 1975 to 23 August 1975 * 11 March 1976 to 11 March 1976 * 8 February 1978 to 8 February 1978 * 10 March 1978 to 4 August 1978 4. His DA Form 2-2 (Insert Sheet to DA Form 2 – Record of Court-Martial Conviction) shows he was convicted by summary court-martial for being AWOL from 31 July 1975 to 23 August 1975. 5. Effective 10 March 1978, his duty status was changed from present for duty (PDY) to confinement by civil authorities (CCA) as recorded on a DA Form 4187 (Personnel Action), dated 19 April 1978. He was convicted of possession of a stolen Treasury check and sentenced to 20 months imprisonment at Florence State Prison, Tucson, AZ. 6. On 28 March 1978 the applicant's commander informed him by letter that he was initiating action to separate him from the service under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), paragraph 14-12a, for misconduct – conviction by a civil court. The commander advised the applicant of his right to have his case considered by a board of officers, to appear in person before a board of officers, to submit statements in his own behalf, to be represented by counsel, to waive any of these rights, and to withdraw any waiver of rights at any time prior to the date the discharge authority directed or approved his discharge and request his case be presented before a board of officers. 7. The applicant failed to respond to the notification within the prescribed 30 days after notification. 8. On 7 June 1978 the deputy Staff Judge Advocate for Fort Huachuca determined the case for separation was legally sufficient. As the applicant had not responded to the written notification within the prescribed 30 days, he had waived his rights and the discharge authority could proceed as appropriate. 9. On 17 July 1978 the separation authority approved the commander’s request to discharge the applicant under the provisions of Army Regulation 635-200, paragraph 14-12a, for misconduct – conviction by civil court. He directed the applicant receive a UOTHC Discharge Certificate. 10. On 24 July 1978, the applicant underwent a medical examination for separation. A mental status evaluation shows no mental health conditions (alcoholism or depression) were noted during his period of active duty service. The evaluation shows he was mentally responsible, could distinguish right from wrong and could adhere to the right, and he had the mental capacity to understand and participate in his separation proceedings. He meet the medical fitness retention standards prescribed in chapter 3 of Army Regulation 40-501 (Standards of Medical Fitness). 11. On 4 August 1978, the applicant was discharged with his service characterized as UOTHC. He completed 2 years, 8 months, and 9 days of total active service with 173 days of lost time. 12. There is no indication that the applicant applied for a review of his discharge by the Army Discharge Review Board within its 15-year statutory limit. 13. 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. Paragraph 14-12a, in effect at the time, provided for separation of Soldiers for patterns of misconduct including convictions by civil authorities. A UOTHC discharge 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 service record. b. Paragraph 3-7b provides that a GD 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 evidence of record shows the applicant was convicted and sentenced to civil confinement. Records show the applicant's command ensured that the proper documents were prepared and that his rights were fully protected during separation processing. His separation was conducted in accordance with applicable regulatory guidelines. 2. There is no evidence in the available records to support the applicant’s contention that alcoholism or depression were involved in the incidents which led to his discharge, and he provides none. 3. The record contains no indication of procedural or other errors that would have jeopardized the applicant’s rights. Based on his numerous periods of AWOL, civil conviction and subsequent confinement, it appears his UOTHC discharge service characterization was appropriate. 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) AR20140000352 3 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1 ABCMR Record of Proceedings (cont) AR20150007683 2 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1