IN THE CASE OF:	  

		BOARD DATE:	  3 January 2012

		DOCKET NUMBER:  AR20110010528 


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.

2.  The applicant states, in effect, at the time he was unaware of the seriousness of his characterization of service.

3.  He provides his DD Form 214 (Report of Separation from Active Duty).

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 February 1976.

3.  He received non-judicial punishment under Article 15, Uniform Code of Military Justice on three occasions:

* on 23 April 1976 for failure to go at the time prescribed to his appointed place of duty on 17 and 19 April 1976, 
* on 5 May 1976 for failure to go at the time prescribed to his appointed place of duty on 1 and 2 May 1976
* on 8 February 1977, for being absent without leave (AWOL) from 25 to
29 January 1977

4.  His record contains a DD Form 458 (Charge Sheet) that shows charges were preferred against him for being AWOL from 5 July to 12 October 1978.

5.  On 18 October 1978, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.  Prior to completing his request he consulted with his appointed counsel who advised him of his rights.  The applicant acknowledged he:

	a.  was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  did not desire further rehabilitation or desire to continue in the military;

	d.  understood that if his request was accepted he could be issued a UOTHC discharge, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration;

	e.  understood he could expect to encounter substantial prejudice in civilian life if he was issued a UOTHC discharge;

	f.  understood that once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority; and

	g.  was advised he could submit any statements he desired to accompany his request for discharge; however, he elected not to do so.

6.  On the same date, the applicant underwent a mental health evaluation in which the attending physician stated he had no significant mental illness, he was able to distinguish right and wrong, and he had the mental capacity to understand and participate in board proceedings.

7.  On 3 November 1978, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200 (Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial, with a UOTHC discharge.  On 15 November 1978, he was discharged accordingly.  The DD Form 214 he was issued confirms he completed 2 years, 5 months, and 23 days of total active service.  He also had 128 days of lost time. 

8.  There is no evidence that he applied to the Army Discharge Review Board for an upgrade of his discharge.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 UOTHC discharge is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a, provides that an honorable discharge 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 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 applicant voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service to avoid a trial by court-martial.  He acknowledged he understood 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.  There is no indication that his request was made under coercion or duress nor was there any indication that he did not understand the seriousness of a UOTHC discharge.

2.  His service record shows he received three nonjudicial punishments for misconduct and he had a total of 128 days of lost time.  As a result, his record of service was not satisfactory and he did not meet the standards of acceptable conduct and performance of duty for Army personnel for the issuance of an honorable or a general discharge.

3.  The available evidence is insufficient for granting the applicant's request.

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)                                         AR20110010528



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ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


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