BOARD DATE:	  23 November 2010

		DOCKET NUMBER:  AR20100014261 


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 discharge under other than honorable conditions (UOTHC) to an honorable discharge (HD).

2.  The applicant states he has applied for disability and wishes to have an honorable DD Form 214 (Certificate of Release or Discharge from Active Duty) to give to his family.

3.  The applicant provides no documents 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.  Following a period of service in the Army National Guard, the applicant enlisted in the Regular Army on 25 May 1977.  He served in military occupational specialty 13B (Field Artillery Crewman).

3.  The applicant accepted nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates for the following offenses:

* 9 August 1979 for disobeying a lawful order from a superior noncommissioned officer (NCO), disobeying a lawful order from a superior commissioned officer, and behaving with disrespect toward a superior commissioned officer
* on or about 17 November 1980 for wrongfully possessing marijuana, behaving with disrespect toward a superior commissioned officer, and willfully disobeying a lawful command from a superior commissioned officer
* 10 September 1982 for violating a lawful order
* 30 November 1982 for wrongfully possessing marijuana, absenting himself from his unit, and violating a lawful general regulation
* 1 December 1982 for violating a lawful general regulation by committing a pass violation and for failing to be at his appointed place of duty

4.  On 22 December 1982, he was charged with:

	a.  four specifications of violation of Article 86 for twice failing to go at the time prescribed to his appointed place of duty on 2 December 1982, absenting himself from his unit from on or about 9 December 1982 to on or about 14 December 1982, and absenting himself from his unit from on or about 16 December 1982 to on or about 22 December 1982;

	b.  one specification of violation of UCMJ, Article 90 for willfully disobeying a lawful command from a superior commissioned officer on 6 December 1982; and

	c.  four specifications of violation of Article 91 for willfully disobeying lawful orders from superior NCO's on three occasions and being disrespectful in language to a superior NCO, all on 6 December 1982.

5.  On 4 January 1983, the applicant voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  Prior to submitting his request, 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 undesirable discharge, and of the procedures and rights that were available to him.

6.  In his voluntary request for discharge, the applicant indicated he understood that by requesting discharge he was admitting guilt to the charges against him or of lesser included offenses and the imposition of a bad conduct or dishonorable discharge was authorized.  He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 11 January 1983, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 794A (UOTHC Discharge Certificate).  On 19 January 1983, he was discharged accordingly.  He completed 5 years, 11 months, and 14 days of total active military service with 11 days of lost time.

8.  On 24 February 1988, the Army Discharge Review Board informed the applicant that his request to upgrade his discharge was denied.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an HD or a general discharge is authorized, a discharge UOTHC is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an HD is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

11.  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 HD.  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 evidence of record does not support the applicant's request for upgrade of his UOTHC discharge to an HD.

2.  The applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.

3.  The applicant's record of service includes numerous NJP's and shows he was charged with offenses punishable under the UCMJ with a punitive discharge.  Based on this record of indiscipline, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to either an HD or a general discharge.

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)                                         AR20100014261



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ABCMR Record of Proceedings (cont)                                         AR20100014261



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