Search Decisions

Decision Text

ARMY | BCMR | CY2008 | 20080007408
Original file (20080007408.txt) Auto-classification: Denied

	IN THE CASE OF:	  

	BOARD DATE:	  03 September 2008

	DOCKET NUMBER:  AR20080007408 


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, in effect, that his discharge under other than honorable conditions be upgraded to honorable.

2.  The applicant states, in effect, that the Social Security Administration has asked him to request his upgrade of his discharge.

3.  The applicant provides a copy of his Report of Separation from Active Duty (DD Form 214).

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 8 February 1977, the applicant enlisted in the Regular Army for 3 years.  He completed his initial training and was awarded military occupational specialty (MOS) 11B (Infantryman).

3.  On 17 June 1977, the applicant was assigned for duty as a grenadier with the 2nd Battalion, 50th Infantry Regiment, 2nd Armored Division, Fort Hood, Texas.

4.  Records show that the applicant was absent without leave (AWOL) from 14 to 
16 October 1977.  There is no evidence of record showing what, if any, punishment was given for this misconduct. 

5.  On 4 April 1978, charges were preferred under the Uniform Code of Military Justice for violation of Article 86, AWOL, during the period from on or about 
25 October 1977 to on or about 27 March 1978.

6.  On 4 April 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service, in lieu of trial by court-martial. 

7.  In his request for discharge, the applicant indicated that he understood that by requesting discharge, he was admitting guilt to the charge against him, or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.   

8.  On 13 April 1978, the separation authority approved the applicant’s request for discharge and directed that he be discharged under other than honorable conditions.  On 20 April 1978, the applicant was discharged accordingly.  He had completed a total of 9 months and 4 days of creditable active military service and had accrued 156 days of time lost due to AWOL.

9.  There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

10.  Army Regulation 635-200 (Personnel Separations) 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 trail by court-martial.  A discharge under other than honorable conditions is normally considered appropriate.

11.  The Manual for Courts-Martial provides for a maximum punishment of a punitive discharge and confinement for 1 year for violation of Article 86, AWOL of more than 30 days.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, to avoid trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The type of discharge directed and the reasons therefore were appropriate considering all of the facts of the case.

3.  In order to justify correction of a military record the applicant must show to the satisfaction of the Board, or it must otherwise satisfactorily appear, that the record is in error or unjust.  The applicant has failed to submit evidence that would satisfy the aforementioned requirement.

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

__XXX __  __XXX__  __XXX__   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.



      	___        XXX                ___
                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)                                         AR20070016793



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20080007408



4


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

Similar Decisions

  • ARMY | BCMR | CY2013 | 20130014931

    Original file (20130014931.txt) Auto-classification: Denied

    The applicant requests his under other than honorable conditions discharge be upgraded to an honorable discharge. He acknowledged he understood that he could request discharge for the good of the Service because court-martial charges had been preferred against him under the UCMJ which authorized the imposition of a bad-conduct or dishonorable discharge. His full separation packet was not available for review in this case; however, his record does contain a DD Form 214 which shows he was...

  • ARMY | BCMR | CY2011 | 20110003477

    Original file (20110003477.txt) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate. The DD Form 214 (Certificate of Release or Discharge from Active Duty) he was issued shows he was discharged by reason of for the good of the service, in lieu of trial by court-martial with an under...

  • ARMY | BCMR | CY2010 | 20100011204

    Original file (20100011204.txt) Auto-classification: Denied

    IN THE CASE OF: BOARD DATE: 16 November 2010 DOCKET NUMBER: AR20100011204 THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. On 13 March 1978, the separation authority approved the applicant's request for discharge and directed that he receive an under other than honorable conditions discharge. The applicant's record of service shows he was AWOL 92 days.

  • ARMY | BCMR | CY2011 | 20110013402

    Original file (20110013402.txt) Auto-classification: Denied

    The applicant states three months into his assignment to Germany, he received information that his mother was ill. His unit granted him 30 days of emergency leave. The DD Form 214 he was issued shows he was discharged for the good of the service - in lieu of trial by court-martial with a character of service of under other than honorable conditions. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

  • ARMY | BCMR | CY2012 | 20120008175

    Original file (20120008175.txt) Auto-classification: Denied

    The applicant requests an upgrade of his under other than honorable conditions discharge. The DD Form 214 (Report of Separation from Active Duty) he was issued at the time shows he was discharged under the provisions of chapter 10 of Army Regulation 635-200, for the good of the service - in lieu of trial by a court-martial with a character of service of under other than honorable conditions. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

  • ARMY | BCMR | CY2008 | 20080014164

    Original file (20080014164.txt) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. On 18 August 1978, the separation authority approved the applicant’s request for discharge. There is no indication that the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

  • ARMY | BCMR | CY2012 | 20120009537

    Original file (20120009537.txt) Auto-classification: Denied

    The applicant requests his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD). On 26 April 1978, the separation authority approved the applicant's request for discharge and directed he be discharged in the lowest enlisted grade under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge. Although an honorable discharge (HD) or general discharge (GD) is authorized, a UOTHC discharge is normally considered appropriate.

  • ARMY | BCMR | CY2009 | 20090020653

    Original file (20090020653.txt) Auto-classification: Denied

    The applicant requests, in effect, an upgrade of his under other than honorable conditions discharge to an honorable discharge. On 24 May 1978, the separation authority approved the applicant's request for discharge for the good of the service in accordance with Army Regulation 635-200, chapter 10, and directed he receive an under other than honorable conditions discharge. His DD Form 214 (Report of Separation from Active Duty) shows he was discharged for the good of the service in lieu of...

  • ARMY | BCMR | CY2009 | 20090005345

    Original file (20090005345.txt) Auto-classification: Denied

    In his request for discharge, the applicant acknowledged he understood that by requesting discharge, he was admitting guilt to the charges against him, or of a lesser included offense, that also authorized the imposition of a bad conduct discharge or a discharge under other than honorable conditions. The DD Form 214 he was issued at the time shows he was discharged for the good of the service in lieu of a court-martial with a character of service of under other than honorable conditions. ...

  • ARMY | BCMR | CY2008 | 20080012942

    Original file (20080012942.txt) Auto-classification: Denied

    The applicant requests, in effect, that his under other than honorable conditions (UOTHC) discharge be upgraded. The applicant's military personnel records show he enlisted and entered active duty on 13 June 1977. Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.