IN THE CASE OF:	  

		BOARD DATE:	  10 February 2011

		DOCKET NUMBER:  AR20100020675 


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) or discharge for medical reasons.

2.  The applicant states he wants an upgrade to qualify for medical benefits and for family-living support.

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

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 enlisted in the Regular Army on 18 March 1977 for a period of 3 years.  After completing initial entry training, he was awarded military occupational specialty 76Y (Unit/Organization Supplyman).

3.  The record shows he received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on several occasions for the following offenses:

* being absent without leave (AWOL) on:

* 2 June 1977
* 23 June 1977
* 18 January 1978
* 6 March 1978

* being disrespectful in language to a superior noncommissioned officer on 17 February 1978
* disobeying lawful orders from superior commissioned and noncommissioned officers on:

* 17 February 1978
* 6 March 1978
* 12 September 1978 (twice)

* communicating a threat to injure a fellow Soldier on 17 February 1978
* using provoking words toward a fellow Soldier on 17 February 1978
* breaching restraint while in correctional custody on 6 May 1978

4.  His punishment for the offenses listed above included forfeiture of pay, restriction, extra duty, reduction in grade, and confinement in correctional custody.

5.  The record includes four DD Forms 458 (Charge Sheet) showing he was charged with the following violations of the UCMJ:

* disobeying lawful orders from a superior noncommissioned officer on 26 October, 20 November (twice), and 21 November 1978
* failing to go at the time prescribed to his appointed place of duty on these dates in 1978:

* 30 and 31 October
* 2, 7, 8, 14, 15, 16, and 17 November

* being AWOL from 9 to 13 November and from 22 to 17 November 1978
* escaping from lawful custody on 22 November and 12 December 1978
* disobeying a lawful command from a superior commissioned officer on 20 and 22 November 1978

6.  On 20 December 1978, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  Prior to submitting his request, he 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, the procedures and rights available to him, and of the substantial prejudice he might encounter in civilian life because of a UOTHC discharge.

7.  In his voluntary request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charges against him or to lesser included offenses and that 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.

8.  On 11 January 1979, the separation authority approved his request for discharge and directed issuance of a DD Form 794A (Under Other than Honorable Conditions Discharge Certificate).

9.  A Standard Form 88 (Report of Medical Examination) shows he underwent a medical examination on 18 January 1979.  He reported he was in good health and the examining physician found him qualified for separation.

10.  On 22 January 1979, he was discharged and his service was characterized as UOTHC.  He completed 1 year, 10 months, and 5 days of total active military service with 33 days of lost time.

11.  The record is void of documentation showing the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

12.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  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 (GD) is authorized, a discharge UOTHC is normally considered appropriate.

	b.  The version of the regulation in effect at the time provided that an individual requesting discharge under chapter 10 would undergo a medical examination as prescribed in Army Regulation 40-501 (Standards of Medical Fitness), chapter 10.

	c.  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.

	d.  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 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 or discharge for medical reasons.

2.  He 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 his rights were fully protected throughout the separation process.

3.  He underwent a medical examination and was found fit for separation.

4.  The applicant's record of service shows 33 days of time lost due to AWOL and confinement and NJP for numerous UCMJ violations.  Based on this record of indiscipline, his 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 GD.

5.  In view of the foregoing, there is no basis for granting the requested relief.

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 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)                                         AR20100020675



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20100020675



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1