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Decision Text

ARMY | BCMR | CY1997 | 9710646
Original file (9710646.rtf) Auto-classification: Denied
2. The applicant requests that his under other than honorable conditions (UOTHC) discharge be upgraded to a general under honorable conditions discharge.
3. The applicant’s military records show that he was born on 7 November 1956. He completed 12 years of formal education and 4 years of the Junior Reserve Officer Training (JROTC) program. On 18 March 1974, he entered the Delayed Entry Program and enlisted in the Regular Army on 5 August 1974 for three years in pay grade E-3 (receiving credit for his JROTC completion). He reenlisted on 18 May 1977 for 3 years, and again on 10 April 1980 for 6 years, with no breaks in service.

4. On 27 September 1978, the applicant accepted non-judicial (NJP) under Article 15, Uniformed Code of Military Justice (UCMJ) for wrongfully engaging in a fist fight. His imposed punishment was a forfeiture of $50 pay for 1 month, suspended.

5. On 5 February 1979, the applicant accepted NJP under Article 15, UCMJ for operating a passenger vehicle while drunk. His imposed punishment was a forfeiture of $200 pay for 1 month, $100 of that suspended for 3 months.

6. On 28 September 1981, the applicant accepted NJP under Article 15, UCMJ for breaking restriction. His imposed punishment was a reduction in one pay grade, suspended, and 45 days extra duty and restriction. The suspended reduction was later vacated.

7. On 15 December 1981, court-martial charges were preferred against the applicant for the offenses of being AWOL 17 - 30 November 1981; failure to go to appointed place of duty; wrongfully possessing some amount of a prohibited drug, to wit: secobarbitol; breaking restriction; and using a habit-forming drug, to wit: secobarbitol.

8. On 18 December 1981, after consulting with legal counsel, the applicant voluntarily requested a discharge under the provisions of Chapter 10, Army Regulation 635-200 for the good of the service in lieu of trial by court-martial. The applicant was advised of the effects of a discharge under other than honorable conditions and that he might be deprived of many or all Army and Veterans Administration benefits. He submitted a statement in his own behalf wherein he stated, in effect, that his previous service was good, but his personal life changed a great deal in a short time and he could not handle it.

9. On 28 December 1981, the applicant’s unit commander recommended approval of the Chapter 10 discharge. He stated the applicant’s severe problems (his wife living with another soldier and asking for a divorce and return to the States with his child) made him a nonproductive soldier; he was depressed about the divorce request and took an overdose of secobarbitol and then went AWOL; and his accomplishments prior to these problems and the nature of the infractions indicate he should be given a general discharge.

10. The battalion commander concurred in the recommendation for a general discharge.

11. On 31 December 1981, the 21 st Support Command Commanding General approved the discharge and directed issuance of an Under Other Than Honorable Conditions Discharge Certificate.

12. On 3 January 1982, the applicant underwent a mental status evaluation and was found to be able to distinguish right from wrong and adhere to the right, and to have the mental capacity to understand and participate in any board proceedings.

13. On 8 January 1982, the applicant completed a separation physical and was found qualified for separation.

14. On 20 January 1982, he was discharged, in pay grade E-1, under the provisions of Army Regulation 635-200, Chapter 10, for the good of the service with a UOTHC discharge. He had completed 7 years, 5 months and 3 days of creditable active service and had 13 days of lost time. His awards included two Good Conduct Medals. He had completed the Primary Leadership Course.

15. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel. Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial. A discharge under other than honorable conditions is normally considered appropriate; however, the discharge authority may direct an honorable or general discharge, if such are merited by the member’s overall record during the current enlistment.

16. On 23 July 1983, the Army Discharge Review Board (ADRB) denied the applicant’s request for an upgrade of his discharge.

 CONCLUSIONS:

 1. From a purely legal standpoint, the applicant’s discharge from service was accomplished in accordance with applicable laws and regulations in effect at the time of his separation.

2. While the Board has taken cognizance of the applicant’s good post-service conduct, this factor alone would not warrant the relief requested.

3. However, while the conduct which led to the applicant’s separation cannot be condoned, it must be noted that, except for two minor infractions incurred prior to the actions leading to his Chapter 10 discharge, neither of which occurred during his then current enlistment, his service was honorable and commendable enough to lead his company and battalion commanders to recommend a general discharge.

4. Although the Army Discharge Review Board denied his application for upgrade, and although the applicant failed to apply to this board within the time required, it would nonetheless be fair and equitable to upgrade the applicant’s UOTHC discharge to a general discharge in consideration of his prior good service and his immediate commander’s recommendations.

5. In view of the foregoing, it would be appropriate to correct the applicant’s records as recommended below.

 RECOMMENDATION :

1. That all of the Department of the Army records related to this case be corrected by:
a. showing that the individual concerned was given a general discharge from the Army on 20 January 1982, under the provisions of Chapter 10, Army Regulation 635-200, for the good of the service.

b. issuing the applicant a General Discharge Certificate from the Army of the United States, dated 20 January 1982, denoting a general discharge in lieu of the Under Other Than Honorable Conditions Discharge Certificate now held by him.

c. issuing the applicant a new DD Form 214 reflecting the aforementioned corrections.

 BOARD VOTE :
GRANT AS STATED IN RECOMMENDATION

 GRANT FORMAL HEARING

 DENY APPLICATION
                                                      CHAIRPERSON
                                                      

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