BOARD DATE:	  30 June 2011

		DOCKET NUMBER:  AR20100030518 


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 (UOTHC) discharge to a general discharge (GD) under honorable conditions.

2.  He states, in effect, he did not receive a DD Form 214 (Certificate of Release or Discharge from Active Duty) when he was honorably discharged to reenlist upon completion of his first term of service.  He feels his honorable discharge (HD) should be taken into consideration for upgrade of his UOTHC discharge.

3.  He provides his DD Form 214 and a self-authored statement.

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 12 August 1980.  
3.  On 10 February 1983, Headquarters, 5th Infantry Division (Mechanized) and Fort Polk, Fort Polk, LA, issued Orders 29-112, which show he was discharged effective 24 February 1983 to reenlist on 25 February 1983.  The orders do not show the character of his service.

4.  On 19 August 1983, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for failing to go at the time prescribed to his appointed place of duty on three occasions on 17 and 18 August 1983.  

5.  A DA Form 2-2 (Insert Sheet to DA Form 2-1 - Record of Court-Martial Conviction) shows he was charged with committing the following offenses on or about 27 October 1983:

* disobeying a lawful order
* committing assault
* wrongfully communicating a threat

The form shows a special court-martial sentenced him to be reduced to private/E-1, to forfeit $150 for one month, and to be confined at hard labor for 15 days.

6.  His DA Form 2-1 (Personnel Qualification Record) shows in:

* item 21 (Time Lost) he was imprisoned from 7 through 17 November 1983 and again from 7 February 1984 through an unspecified date
* item 27 (Remarks) he was arrested by civil authorities in Leesville, LA, on 7 February 1984 while in a duty status and charged with aggravated battery which was pending trial

7.  On 23 January 1984, he 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, he consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial under circumstances which could lead to a bad conduct or dishonorable discharge and the rights available to him.  

8.  In his voluntary request for discharge, he indicated he understood if his request were accepted he could receive a UOTHC discharge and that by submitting his request he was admitting he was guilty of the charge(s) against him or (a) lesser-included offense(s).  He further acknowledged he understood if he received a UOTHC discharge, he could be deprived of many or all Army 


benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, he could be deprived of his rights and benefits as a veteran under both Federal and State laws, and he could encounter substantial prejudice in civilian life.

9.  The complete facts and circumstances leading to his discharge are not contained in the available records.

10.  Orders 39-130, issued by Headquarters, 5th Infantry Division (Mechanized) and Fort Polk, Fort Polk, LA, dated 27 February 1984, show he was discharged under the provisions of Army Regulation 635-200 effective 28 February 1984. 

11.  A DD Form 214 covering the period 12 August 1980 to 28 February 1984 shows he received a UOTHC discharge under the provisions of Army Regulation 635-200, chapter 10.  Item 18 (Remarks) shows his prior enlistments for the period were from 12 August 1980 to 24 February 1983 and from 25 February 1983 to 28 February 1984.  Item 21 (Signature of Member Being Separated) shows the entry "Member not available to sign."

12.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

13.  In the statement he provides, he states, in effect, he believes the honorable discharge he received at the end of his first enlistment should be a consideration in the decision on his request for upgrading his final discharge.  He states he reenlisted for assignment to California, which was denied, leaving him at Fort Polk, LA.  He became depressed and started abusing alcohol.  He brought his concerns to his commanding officer, but received no help or service to address his alcohol problem.  

14.  He states he had an altercation with a civilian and felt his life was being threatened.  He fired his .22 caliber pistol at the civilian and the shot penetrated the civilian's upper arm.  The civilian was on probation at the time and he dropped charges of aggravated assault.  He spent approximately 2 months incarcerated in the Leesville, LA, city jail.  During his time there, his commanding officer sent him his discharge papers.  He states, in effect, the entry in item 21 of his DD Form 214 is an injustice.  

15.  He closes by stating he was a young man of 22 years of age at the time.  He knows what he did was wrong, he made a poor decision, and he has learned a great lesson from his actions.

16.  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 honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

	b.  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.  

17.  Army Regulation 635-5 (Personnel Separations - Separation Documents) prescribes the separation documents prepared for Soldiers upon retirement, discharge, or release from active military service or control of the Army.  It establishes standardized policy for the preparation of the DD Form 214.  

	a.  The version in effect at the time stated a DD Form 214 would not be prepared for enlisted members discharged for immediate reenlistment in the Regular Army.  

	b.  It also stated to enter in item 18 a list of enlistment periods for which a DD Form 214 was not issued.

	c.  For item 21, it stated when the separatee could not or would not sign to enter "Member not available to sign" or "Member refused to sign."  

DISCUSSION AND CONCLUSIONS:

1.  The evidence of record does not support the applicant's request for an upgrade of his discharge.

2.  The record shows he was charged with the commission of an offense 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.  In the absence of documentary evidence to the contrary, it is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.
3.  His record shows he received NJP, was convicted by a special court-martial, and admitted he was guilty of a charge or a lesser-included offense that authorized the imposition of a bad conduct or dishonorable discharge.  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 a GD.

4.  The record shows he received a properly-constituted DD Form 214.  There is no evidence of injustice in the absence of his signature on the form.  He states he was incarcerated by civil authorities at the time.  It appears his commander made the reasonable determination that, as a practical matter in the administration of his discharge, he could not sign because of his incarceration.

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)                                         AR20100030518





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ABCMR Record of Proceedings (cont)                                         AR20100030518



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