IN THE CASE OF:	  

		BOARD DATE:	  16 February 2011

		DOCKET NUMBER:  AR20100021020 


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 under other than honorable conditions (UOTHC) discharge to a general discharge (GD) or an honorable discharge (HD).

2.  The applicant states:

   a.  clemency is warranted because it is an injustice for him to continue to continue to suffer the adverse consequences of a UOTHC discharge;

   b.  he would not have received a UOTHC discharge under current standards;

   c.  his average conduct, efficiency ratings, and proficiency marks were good
and his promotion record shows he was a good Soldier;

   d.  he received awards and decorations and achieved other acts of merit;

   e.  his youth and immaturity, personal and financial problems, and racial discrimination impaired his ability to serve;

   f.  his punishment was much harsher than others who were punished for the same offense; and

   
g.  he provides a list of Army Discharge Review Board (ADRB) cases by docket number wherein he indicates relief was granted under the ADRB’s “Whole Man Concept” and other ADRB policy; therefore, his case should be processed accordingly.

3.  The applicant provides:

* Veterans Service Commission Letter, dated 1 July 2010
* a self-authored statement, dated 21 July 2010
* Official Military Personnel File (OMPF) document extracts
* three character reference statements
* Akron Municipal Court Arrest and/or Traffic Offense Record

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 military record shows he initially enlisted in the Ohio Army National Guard (OHARNG) for 6 years.  He was trained in and served in military occupational specialty 19F (Tank Driver).

3.  Headquarters, Fifth United States Army, Orders Number 87-114, dated 3 May 1979, show the applicant was ordered to serve in an active duty status for 
20 months, effective 20 June 1979.  He was assigned to the United States Army Reception Station, Fort Knox, Kentucky.  The applicant was age 19 and he was ordered to active duty because he failed to participate satisfactorily in unit training assemblies and/or field training.  

4.  State of Ohio, Adjutant General’s Department Order Number 93-16, dated 14 May 1979, directed the applicant’s discharge from the OHARNG by reason of “individual ordered to involuntary active duty.”  The NGB Form 22 (National Guard Bureau Report of Separation and Record of Service) shows the applicant completed 2 years, 11 months, and 20 days of net service this period.
5.  On 20 July 1979, the Commander, U. S. Army Reception Station, Ft Knox, Kentucky, prepared a DA Form 4187 (Personnel Action) which shows the applicant failed to report for duty on 20 June 1979.  A DA Form 4187 dated 26 August 1981, shows he was apprehended by civilian authorities and returned to military control on 9 August 1981.

6.  On 26 August 1981, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) for being AWOL from on or about 20 June 1979 to 9 August 1981.

7.  On 26 August 1981, the applicant underwent a mental status evaluation that showed his behavior and thought content were normal, he was fully alert and oriented, he had an unremarkable mood, his thinking process was loosely connected, and his memory was good.  The examiner also determined the applicant was mentally responsible, met retention requirements, and he had the mental capacity to understand and participate in separation proceedings.

8.  On 27 August 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a an Under Other That Honorable Conditions (UOTHC) Discharge Certificate, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge, under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

9.  In his request for discharge, the applicant acknowledged he understood 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 (VA) and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UOTHC discharge and submitted a statement in his own behalf.

10.  The applicant indicated in his statement that:

	a.  he was a high school dropout who enlisted in the military at the request of his father who served as a Reservist for 27 years; and 

	b.  he could not adjust to the Army and he wanted to get out.

11.  On 9 September 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, 
chapter 10, directed that he be reduced to the lowest enlisted grade, and directed issuance of a UOTHC Discharge Certificate.  On 19 October 1981, the applicant was discharged accordingly.

12.  The applicant's DD Form 214 shows he was discharged under the provisions of Army Regulation 635-200, chapter 10.  It also shows he completed 1 year, 2 months, and 11 days of total active service with lost time from 20 June 1979 to
8 August "1982."

13.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within that board’s 15-year statute of limitations.

14.  The applicant provides three character references from individuals who state the applicant is:

* a very hard worker
* very considerate
* extremely reliable and timely
* always positive 
* a dependable friend

15.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of the version in effect at the time provided that a member who committed an offense or offenses for which the authorized punishment included a punitive discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred,.  Commanders would ensure that an individual was not coerced into submitting a request for discharge for the good of the service.  Consulting counsel would advise the member concerning the elements of the offense or offenses charged, type of discharge normally given under the provisions of this chapter, the loss of VA benefits, and the possibility of prejudice in civilian life because of the characterization of such a discharge.  A UOTHC Discharge Certificate would normally be furnished an individual who was discharged for the good of the Service.

16.  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.
17.  Army Regulation 635-200, 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 honorable discharge.  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 shows the applicant was discharged from the OHARNG for unsatisfactory participation and involuntarily ordered to active duty for a period of 20 months, effective 20 June 1979.  He failed to report to active duty and remained in an AWOL/DFR status from 20 June 1979 to 9 August 1981 until he was apprehended by civilian authorities and returned to military control.  Accordingly, he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge due to being AWOL 781 days.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

2.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  The applicant’s offenses rendered his service unsatisfactory.  Therefore, he is not entitled to an upgrade of his discharge.

3.  The available evidence does not support the applicant's contentions that his punishment was harsher than others who committed the same offense or that under current standards he would have received a more favorable discharge.

4.  Additionally, there is no evidence that his youth and immaturity affected his ability to serve, or that personal problems impaired his ability to serve.  There is no evidence that the applicant was younger or any less mature than other Soldiers of his age who completed their military obligations.  There is also no evidence that he sought help through his chain of command for any personal problems.  

5.  Further, there is no evidence of racial discrimination in his record and the applicant provided no evidence of such.

6.  In view of the foregoing, the applicant’s request should be denied.


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)                                         AR20100021020





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ABCMR Record of Proceedings (cont)                                         AR20100021020



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