IN THE CASE OF:	  

		BOARD DATE:	      17 April 2012

		DOCKET NUMBER:  AR20110020542 


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:

	a.  because he was young and inexperienced during his military service, he did not ask for help and made mistakes which caused him to be discharged;

	b.  he previously served 3 years and 6 months in the Army and feels his unit chain of command gave him no guidance; and

   c.  he was threatened with harsh punishment or discharge and decided to be discharged from the Army.
   
3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge 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's military record shows he enlisted in the Regular Army on 7 May 1981.  He was trained in and served in military occupational specialties 63B (Power Generation and Wheel Vehicle Mechanic).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private first class (PFC) on 4 October 1980, and this was his highest rank held.  It also shows he was reduced on two separate occasions.

4.  Item 21 (Time Lost) of the DA Form 2-1 shows he was reported absent without leave (AWOL) on three separate occasions during the following periods:

* 19 - 29 January 1978 (11 days)
* 1 - 5 February 1978 (5 days)
* 13 January 1981 - (unrecorded)

5.  The applicant's DA Form 2-2 (Insert Sheet to DA Form 2-1) shows a special court martial (SPCM) convicted him of two specifications of being AWOL from on or about 19 - 29 January 1978 and 1 - 6 February 1978.  His resultant sentence was forfeiture of pay for one month in the amount of $125.00, 30 days restriction, and 30 days hard labor without confinement.

6.  His military record shows he accepted non-judicial punishment under the provision of Article 15 of the Uniform Code of Military Justice (UCMJ) on three separate occasions for the following infractions on the dates indicated:

* 27 December 1977 - for failing to go at the time prescribed to his appointed place of duty on 19 December 1977
* 25 July 1978 - for damaging an M886 1 1/4 ton ambulance with the front of a jeep, military property, in the sum of $1180.00
* 12 December 1980 - for thrice failing to go at the time prescribed to his appointed place of duty on 21, 22, and 24 November 1980

7.  The applicant's OMPF is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 that shows he was discharged 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.

8.  The applicant's DD Form 214 also confirms he was discharged on 7 May 1981 after completing 3 years, 6 months, and 13 days of creditable active military service.  It also confirms he received a UOTHC discharge.

9.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 states 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.

	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 of 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, in lieu of trial by court-martial and that he received a UOTHC discharge.  This separation document carries with it a presumption of government regularity in the separation process.
2.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. Procedurally, he was required to consult with defense counsel and to voluntarily request separation from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

3.  Lacking evidence to the contrary, it is presumed all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  It is further presumed the UOTHC discharge the applicant received was appropriate considering the offense for which he was discharged and the overall quality of his service.

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)                                         AR20110020542





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ABCMR Record of Proceedings (cont)                                         AR20110020542



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