IN THE CASE OF:	

		BOARD DATE:	23 June 2011

		DOCKET NUMBER:  AR20100029490 


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 upgrade of his under other than honorable conditions discharge (UOTHC) to general.

2.  The applicant states he was told his discharge would automatically be upgraded to a general under honorable conditions within six months of his separation.  That has not happened.  He further states, in effect, that when he was in the service he was young, away from home for the first time, fell in with the wrong crowd and started drinking.  He no longer drinks, has been a good citizen and stayed out of trouble.  He feels a general discharge under honorable conditions would have been fair considering his age.

3.  The applicant provides DD Form 293 (Application for Review of Discharge from the Armed Forces of the United States), five character reference letters, a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty and DD Form 215 (Correction to 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.  The applicant enlisted in the Regular Army on 2 July 1980.  He completed training and was awarded military occupational specialty 13B (Cannon Crewmember).
 
3.  On 16 October 1980, he was transferred to Korea and assigned to C Battery, 1st Battalion, 15th Field Artillery, 2d Infantry Division. He departed Korea 
12 October 1981 and was assigned to Fort Bragg, NC, effective 15 November 1981.  

4.  He received nonjudicial punishment (NJP) under Article 15, UCMJ on:

     a.  9 July 1981, for willful disobeying a lawful order and being disrespectful in language towards a superior noncommissioned officer.   The punishment consisted of reduction to E-1, forfeiture of $116.00 for 1 month, and restriction and extra duty for 14 days. 

     b.  14 December 1981, for being absent without leave (AWOL) for 2 days.  The punishment included forfeiture of $82 pay per month for 1 month ($41 suspended for 60 days) and 10 days extra duty (7 days suspended for 60 days).  

     c.  26 February 1982, for failing to go at the time prescribed to his appointed place of duty.  The punishment consisted of reduction to E-1 (suspended for 60 days), forfeiture of $50 for 1 month, and 14 days of extra duty.

     d.  The applicant did not appeal any of the punishments.

5.  His records show he was reported AWOL from 24 March 1982 through 
14 April 1982 (22 days).  

6.  On 6 July 1982, charges were preferred against him for being AWOL from 
3 May 1982 until on or about 2 July 1982 (60 days).

7.  When charges were preferred for that AWOL, the applicant consulted with counsel and requested discharge for the good of the service in lieu of trial by court-martial.  He indicated that he understood that by requesting discharge he was admitting guilt to the charges against him or to a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He 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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and state laws.

8.  The chain of command recommended approval of the applicant's request.  The separation authority approved the request and directed that an under other than honorable conditions discharge be issued.  On 11 August 1982, the applicant was discharged under the provisions of Army Regulation 635-200 (Enlisted Personnel Separations), chapter 10.  He had completed 2 years and
29 days of net active service.

9.  There is no indication 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 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation 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 honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.  

11.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses under the UCMJ.  A punitive discharge is authorized for any AWOL in excess of 30 days.

12.  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 honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier’s separation specifically allows such characterization.

13.  In support of his request, he provides five character reference letters.  These letters generally describe him as a nice person, helpful in the community, and in need of medical assistance.  None of the letters address the incidents that occurred during his Army service. 



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.  The character of the discharge is commensurate with his overall record.

2.  The applicant's letters of character reference are noted.  However, they do not sufficiently mitigate the misconduct that led to his discharge.  Additionaly, the Army has no policy of automatic upgrades.  Accordingly, the applicant's overall record of service simply does not rise to the level of a general or honorable discharge.

3.  In view of the foregoing there is no basis for granting the applicant's 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 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)                                         AR20100008890



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ABCMR Record of Proceedings (cont)                                         AR20100029490



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