IN THE CASE OF:	  

		BOARD DATE:	  26 April 2012

		DOCKET NUMBER:  AR20110020999 


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 discharge under other than honorable conditions (UOTHC) to honorable or general under honorable conditions.

2.  The applicant states:

	a.  His discharge was done under duress.  He was led to believe he would attend officer candidate school by his recruiter.  When he finished basic training and was assigned to his first duty station he was told he had to wait.

	b.  He enlisted after completing 4 years of college, but the lies kept coming.  He soon found himself getting into trouble, being involved in fights, and so on.  He went to his first sergeant on more than one occasion requesting a discharge and was advised that it was too soon to make that decision.

	c.  The trouble continued, but no one would listen until the day the discharge processing was started.  He feels the type of discharge he received is wrong.  He tried to seek help, but the system failed him.

3.  He provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty).
* DD Form 293 (Application for the Review of Discharge or Dismissal from the Armed Forces of the United States)

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.  Item 12 (Civilian Education and Military Schools) of his DA Form 2-1 (Personnel Qualification Record – Part II) shows the applicant was awarded a Bachelor of Arts in Physical Education in 1978.  His enlistment contract, dated 26 April 1979, shows he enlisted for the U.S. Army Combat Arms/Unit of Choice option.

3.  The applicant's military record shows he enlisted in the Regular Army in pay grade E-3 on 26 April 1979 for 3 years.  He completed training and was awarded military occupational specialty 19E (Armor Crewman).  He served in Germany from 13 August 1979 through 6 March 1980.

4.  On 30 December 1979, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice, for willfully disobeying an order from his superior commissioned officer on or about 19 November 1979.

5.  A DD Form 458 (Charge Sheet) was completed by the Commander, Troop E, 1st Squadron, 10th Cavalry, Germany.  The applicant was charged with one specification each of:

* failing to obey a lawful order from his superior commissioned and noncommissioned officers on 16 November 1979
* assaulting his superior noncommissioned officer on 15 December 1979
* willfully damaging military property of the United States on 15 December 1979
* assaulting his superior noncommissioned officer on 16 November 1979
* being incapacitated from the proper performance of duty as a result of previous indulgence in intoxicating liquor on 16 November 1979

6.  On 31 December 1979, the applicant's commander recommended his trial by a special court-martial empowered to adjudge a bad conduct discharge.

7.  On 11 January 1980, he underwent a mental status evaluation.  His behavior was found to be normal.  His was found to be fully alert with a level mood and his thinking process was clear.  His thought content was normal and his memory was good.  The examining physician, a medical doctor, found no significant mental illness and the applicant was mentally responsible, able to distinguish right from wrong, and able to adhere to the right.  He determined the applicant had the mental capacity to understand and participate in board proceedings and met the retention standards of Army Regulation 40-501 (Standards of Medical Fitness), chapter 3.

8.  On 6 February 1980 after consulting with counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200 (Personnel Separations), chapter 10.  In doing so, he acknowledged he had not been coerced with respect to his request for discharge.  He also acknowledged he understood he could be issued a UOTHC Discharge Certificate, he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and he could be ineligible for many or all benefits administered by the Veterans Administration.  He waived his rights and elected not to submit a statement in his own behalf.

9.  On 6 February 1980, the applicant's battalion commander recommended approval of the applicant's request and the issuance of a UOTHC discharge.

10.  On 26 February 1980, the convening separation authority approved the applicant's request and directed his reduction to pay grade E-1 and the issuance of a UOTHC discharge.

11.  He was discharged in pay grade E-1 on 6 March 1980 under the provisions of Army Regulation 635-200, chapter 10, for conduct triable by court-martial.  His service was characterized as UOTHC.  He was credited with completing 10 months and 11 days of net active service with no lost time.

12.  On 26 May 1982, the Army Discharge Review Board denied his request for an upgrade of his discharge.

13.  Army Regulation 635-200 sets forth the basic authority for separation of enlisted personnel.  Chapter 10, stated 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 in lieu of trial by court-martial at any time after the charges had been preferred.  A UOTHC discharge was normally considered appropriate.  The separation authority could direct an honorable or general discharge if such a discharge were merited by the Soldier's overall record.

14.  Army Regulation 635-200, paragraph 3-7a, states 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.

15.  Army Regulation 635-200, paragraph 3-7b, states a general discharge was 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 evidence of record shows the applicant entered the Regular Army in pay grade E-3 as a result of having a college degree.  He completed his initial training served without incident until November 1979.  In November 1979, he was charged with one specification of disobeying his superior commissioned and noncommissioned officers, assaulting said officers, destroying military property, and being incapacitated as a result of indulgence in intoxicating liquor.  The applicant's commander recommended his trial by a special court-martial empowered to adjudge a bad conduct discharge.

2.  On 8 February 1980, he voluntarily requested discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence if he felt he was being wrongfully charged.  He also acknowledged he understood he could be furnished a UOTHC Discharge Certificate.  Accordingly, he was discharged on 6 March 1980.

3.  He provides insufficient evidence or a convincing argument to show he was unjustly denied any training during his service.  He has also not submitted any evidence that his discharge should be upgraded or evidence sufficient to mitigate the character of his discharge.  His military records contain no evidence which would entitle him to an upgrade of his discharge.  The seriousness of the charges for which he voluntarily requested discharge diminished the quality of his service below that meriting an honorable or general discharge.

4.  It appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  Therefore, he was properly discharged with due process in accordance with pertinent regulations.

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)                                         AR20110020999



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ABCMR Record of Proceedings (cont)                                         AR20110020999



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