IN THE CASE OF: 

		BOARD DATE:  31 January 2012

		DOCKET NUMBER:  AR20110014406 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  He states he is very ashamed of his misbehavior while in the Army and apologizes for it.  It was embarrassing and reflected poorly on him as an individual.  Since his discharge he has become a productive member of his community and lived an outstanding life.  He makes no excuse for his behavior; however, he was a very proud Soldier.  He is humbly requesting an upgrade of his discharge.  The upgrade would make his life complete, letting him know he was able to overcome his indiscretion as a youthful Soldier.

3.  The applicant provides letters of character reference and support from a church deacon, an assistant store manager, a family friend, and a city clerk.

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 on 10 September 1974.  He completed training and was awarded military occupational specialty 55B (Ammunition Specialist).

3.  He accepted nonjudicial punishment under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 3 occasions for failing to go to his appointed place of duty.

4.  On 13 January 1977, charges were preferred against the applicant for being absent without leave (AWOL) from 16 to 17 November 1976 and from 
6 December 1976 to 12 January 1977 [38 days].  

5.  On 17 January 1977, 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 an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, the applicant 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.

6.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  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 VA, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

7.  On 31 January 1977, the separation authority approved the applicant's request for discharge and directed that he receive a UOTHC discharge.  On 
15 February 1977, the applicant was discharged.  He had completed 2 years, 3 months, and 12 days of creditable active military service and had 55 days lost time.

8.  On 2 December 1981, the Army Discharge Review Board denied his request for an upgrade of his discharge.



9.  In support of his request he provides letters of character reference and support from:

	a.  a Deacon in his church who has known the applicant for more than 
20 years.  He states the applicant has served the church, its members and the community with honor.  His is known to give a helping hand and/or a word of advice to the young men of the community,

	b.  his Publix Super Market Assistant Store Manager who states the applicant is a hard working, honest associate and a huge asset to their store,

	c.  a retired teacher who states the applicant is a very kind person, a hard worker, a concerned family man and a gentlemen; and 

	d.  the City Clerk and Supervisor of Elections, Opa-Locka, FL, who has known the applicant for more than 15 years.  Based on their professional association the applicant was found to be honest and straightforward in his approach to his work, business, and family.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 86 for AWOL of more than 30 days is a dishonorable discharge and confinement for 1 year.

11.  Army Regulation 635-200 (Personnel Separations) provides the basic authority for the separation of enlisted personnel.

	a.  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 and charges, the 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 was normally considered appropriate.

	b.  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.

	c.  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's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.  His service was characterized by the nature of his offense and the circumstances of this separation.

2.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The letters of support provided by the applicant were noted.  While the Board is empathetic, the applicant's post-service accomplishments are not sufficiently mitigating to warrant an upgrade of his discharge.

4.  Based on his record of misconduct, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his discharge.

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)                                         AR20100015867



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20110014406



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1