BOARD DATE:	  7 August 2012

		DOCKET NUMBER:  AR20120002777 


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.  

2.  He states:

* he's requesting an upgrade so he can be entitled to a military burial as an honorable member of the armed services
* he regrets his actions that led to his discharge from the Army
* his discharge was based on one isolated incident in comparison to his 78 months of service
* he received numerous certificates, recognition, and he attended the 3rd Armored Division Noncommissioned Officer (NCO) Academy

3.  He provides no additional documents.

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 29 August 1978.  Upon completion of one station unit training, he was awarded military occupational specialty (MOS) 13B (Cannon Crewman).  He was later reclassified into MOS 15J (Multiple Launch Rocket System/Lance Operations Fire Direction Specialist).  He was promoted to specialist four/E-4 on 1 February 1980 and he served in Germany from December 1978 to December 1980.  

3.  His service record contains a Certificate of Graduation, dated 10 October 1980, which indicates he completed the NCO Academy, Primary NCO Course (Combat Arms).  

4.  His service record also contains a Letter of Commendation, dated 12 October 1982, given to him for his outstanding performance during the Lance Operations/Fire Direction Assistant Course.

5.  He was honorably discharged on 13 October 1982 for immediate reenlistment.  

6.  He reenlisted on 14 October 1984 for a period of 6 years.  He served in Germany again from 27 November 1982 to 24 March 1984.  

7.  The facts and circumstances surrounding his discharge are not available.  However, his service record contains an OSA Form 172 (Case Report and Directive) which indicates:

	a.  On 21 January 1985, he was charged with failing to obey a lawful order and stealing property from the Army and Air Force Exchange System. 

	b.  On 30 January 1985, he consulted with legal counsel and 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, and he didn't submit statements in his own behalf.

	c.  On 1 and 5 February 1985, his chain of command recommended approval with a UOTHC discharge.

	d.  On 8 February 1985, the separation authority approved the request for discharge and directed separation with a UOTHC discharge.  

	e.  On 14 February 1985, the applicant was discharged.  At the time of his discharge, he had completed 6 years, 5 months, and 15 days creditable active service.

8.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) indicates he was awarded or authorized the Army Service Ribbon, Overseas Service Ribbon, NCO Professional Development Ribbon, Army Good Conduct Medal (2nd Award), and Expert Marksmanship Qualification Badge with Rifle Bar (M-16)

9.  On 24 October 1991, the Army Discharge Review Board denied the applicant's request 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 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 3-7a 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.

DISCUSSION AND CONCLUSIONS:

1.  The applicant states he wants his discharge upgraded so he can be entitled to a military burial as an honorable member of the armed services.  However, there are no provisions in Army regulations that allow the upgrade of a discharge for the sole purpose of securing veteran's benefits.  The applicant must provide evidence to prove the discharge was rendered unjustly, in error, or that there were mitigating circumstances.  

2.  The applicant contends his discharge was based on one isolated incident in comparison to his 78 months of service.  However, his service record shows he was charged with failing to obey a lawful order and stealing property from the Army and Air Force Exchange System during the period under review.  Considering the seriousness of his offenses, his service was appropriately characterized.  

3.  His service record confirms he received certificates, recognition, and he attended the 3rd Armored Division NCO Academy.  However, these factors alone are not sufficiently mitigating to warrant an upgrade of his discharge.  

4.  The applicant’s record shows he was charged with the commission of offenses which are punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharges under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  All requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  

5.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant a general or fully honorable discharge.  

6.  The evidence of record does not indicate the actions taken in his case were in error or unjust.  Therefore, there is no basis for granting the requested relief.

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)                                         AR20120002777





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ABCMR Record of Proceedings (cont)                                         AR20120002777



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