IN THE CASE OF:	  

		BOARD DATE:	  18 November 2008

		DOCKET NUMBER:  AR20080011393 


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, characterized as under other than honorable conditions (UOTHC), be upgraded to an unconditional discharge effective 31 July 1978. 

2.  The applicant states, in effect, that he was not provided a fair trial; that no crime was committed; no court-martial charge sheet was available; he was not represented fairly; he was coerced into signing a confession; and he did not violate any laws of the US Government.  He states that he had two previous honorable discharges.  He adds that when he goes to the VA (Department of Veterans Affairs) for treatment he wants his children to know he served 8 years of honorable service.

3.  The applicant provides two letters from his MOCs (Members of Congress) and a copy of his discharge proceedings, signed by his commander (CPT A____ E____), in support of his request.

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 record shows he enlisted in the Regular Army on 31 August 1970.  He was trained as a Lineman, in military occupational specialty (MOS) 36C. He was promoted to specialist four, pay grade E-4 effective 1 June 1971.  He served until he was honorably discharged on 14 June 1971 for immediate reenlistment.   He had completed 9 months and 14 days of total active service.

3.  The applicant reenlisted on 15 June 1971.  He was promoted to specialist five (SP5/E-5).  He served until he was honorably discharged on 16 May 1974 for immediate reenlistment.  He had completed 2 years, 11 months, and 2 days of total active service for this period plus his prior active service of 9 months and 14 days which equates to 3 years, 8 months, and 16 days of total active service.

4.  The applicant reenlisted on 17 May 1974 for 4 years with an established expiration term of service (ETS) of 16 May 1978. 

5.  On 17 August 1976, while serving in Germany, the applicant was punished under Article 15 of the Uniform Code of Military Justice (UCMJ) for failing to go to his appointed place of duty on 27 July 1976.  His punishment consisted of a forfeiture of $100.00.

6.  The applicant's charges are unavailable for review. 

7.  On 12 May 1978, the applicant's commander submitted a request to the Commander, 5th Finance, requesting that the applicant be paid past his normal PCS (Permanent Change of Station)/ETS date since he would be held beyond his normal date pending completion of judicial action.  He was scheduled to depart the command on 16 May 1978.

8.  On 14 June 1978, the applicant consulted with counsel and voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.  In doing so, he acknowledged that he might encounter substantial prejudice in civilian life and might be ineligible for many or all benefits administered by the Veterans Administration (VA) if a discharge UOTHC were issued to him.  The applicant acknowledged the notification and after consulting with counsel, waived his rights and elected not to submit a statement in his own behalf. 


9.  On 16 June 1978, the commander stated that the applicant’s alleged offense was serious in nature and a crime against the laws of both the German Government and the United States Government.  He therefore recommended that the applicant be given a general discharge.  

10.  On 20 June 1978, the Acting Commander, a LTC (lieutenant colonel), recommended the issuance of an UOTHC discharge.

11.  On 29 June 1978, the separation authority approved the applicant's request for discharge and directed that he be furnished a discharge characterized as UOTHC and that he be reduced to the lowest enlisted grade.  

12.  The applicant was discharged in the rank/pay grade of private/E-1 on 31 July 1978.  He had completed a total of 4 years, 2 months, and 15 days of net active service for this period and he had completed 3 years, 8 months, and 16 days of prior active service for a total of 7 years, 11 months, and 1 day of total active service. 

13.  The applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge on 2 January 1979.  The ADRB proceedings indicated that although the charge sheets were missing from the file there was sufficient evidence to indicate that the applicant was charged with a customs violation, apparently violating both the customs laws of the United States as well as the Federal Republic of Germany.  At that time, the applicant requested discharge in lieu of trial by court-martial, and he acknowledged his guilt.  The ADRB found no evidence of record, nor was any submitted by the applicant, which would mitigate the offense which led to the applicant's discharge.  Therefore, the ADRB voted unanimously to deny relief.  The ADRB determined that his discharge was proper and equitable and denied his request on 13 January 1982.

14.  Army Regulation 635-200 sets forth the basic authority for 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.

15.  Title 38 of the Code of Federal Regulations, Chapter 1, section 3.13(c), provides that, "Despite the fact that no unconditional discharge may have been issued, a person shall be considered to have been unconditionally discharged or released from active military service when the following conditions are met:…   (2) The person was not discharged or released from such service at the time of completing that period of obligation due to an intervening enlistment or reenlistment; and (3) the person would have been eligible for a discharge or release under conditions other than dishonorable at that time except for the intervening enlistment or reenlistment.”

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's charges were missing from his record, there was sufficient evidence to indicate that he was charged with a customs violation, apparently violating both the customs laws of the US as well as the Federal Republic of Germany.  

2.  The applicant’s request for discharge was submitted under the provisions of Army Regulation 635-200, chapter 10 to avoid trial by court-martial.  There is no evidence that the applicant’s request for discharge was made under coercion or duress.  The applicant's discharge on 31 July 1978 was accomplished in compliance with applicable regulations.  There is no evidence available to indicate he was treated unfairly and the applicant has failed to submit such evidence.

3.  The applicant received a UOTHC discharge for the period of service from 17 May 1974 through 31 July 1978, and this period of service does not warrant an upgrade.  Nor is he entitled to a complete and unconditional discharge for this period of service.  The applicant was properly issued an honorable discharge on 14 June 1971 after completing 9 months and 14 days of creditable service.  He was also issued an honorable discharge on 16 May 1974 after completing 
2 years, 11 months, and 2 days of honorable service.  He completed a total of 
3 years, 8 months, and 16 days of honorable service.  He was issued a DD Form 214 upon the completion of each period of service.  Therefore, there is no basis for issuing him a complete and unconditional discharge.

4.  Eligibility for veterans' benefits does not fall within the purview of this Board. The applicant should contact a local VA office for further assistance.

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)                                         AR20080011393



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ABCMR Record of Proceedings (cont)                                         AR20080011393



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