IN THE CASE OF:	  

		BOARD DATE:  16 October 2012

		DOCKET NUMBER:  AR20120006967 


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.

2.  The applicant states he was not at fault for "the wrongdoing" of marijuana.  He would like his discharge upgraded for eligibility for veterans' benefits.

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 records show he enlisted in the Regular Army in pay grade E-1 on 5 March 1980 for 4 years.  He completed training and he was awarded military occupational specialty 11B (Infantryman).  He was advanced to pay grade E-2 on 27 September 1980.

3.  On 16 April 1981, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 3 to 25 March 1981.  He was sentenced to a reduction to pay grade E-1 and 30 days of confinement at hard labor.  The sentence was approved on 21 April 1981.

4.  He was again advanced to pay grade E-2 on 1 December 1981.

5.  On 15 December 1981, a DD Form 458 (Charge Sheet) was prepared by the Commander, Company C, 4th Battalion, 54th Infantry, 194th Armored Brigade, Fort Knox, KY.  The applicant was charged with one specification each of behaving disrespectfully toward his superior commissioned officer and disobeying a lawful order from the same superior commissioned officer on 10 December 1981.

6.  Court-martial charges were preferred against him on the same date.

7.  On 15 December 1981 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 – Enlisted Personnel), chapter 10.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge and he did not desire further military service.  He also acknowledged that he could be discharged UOTHC and he could be deprived of many or all Army benefits as a result of the issuance of such a discharge, and that he could be ineligible for many or all benefits administered by the Veterans Administration (VA).  He waived his rights and elected not to submit a statement in his own behalf.

8.  On 8 January 1982, the separation authority approved the applicant's request for discharge for the good of the service and directed the issuance of a discharge UOTHC and reduction to pay grade E-1.

9.  He was discharged for the good of the service in lieu of trial by court-martial on 22 January 1982 in pay grade E-1 under the provisions of Army Regulation 635-200, chapter 10, with his service characterized as UOTHC.  He completed 1 year, 9 months, and 4 days of net active service with lost time from 3 to 24 March 1981 and 14 April to 7 May 1981.

10.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

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

12.  Army Regulation 635-200, paragraph 3-7a, states an honorable discharge is a separation with honor.  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 inappropriate.

13.  Army Regulation 635-200, paragraph 3-7b, states 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 evidence of record shows he was convicted by a summary court-martial of being AWOL.  On 15 December 1981, he was charged with being disrespectful toward his superior commissioned officer and disobeying a lawful order from the same officer.  He voluntarily requested discharge in lieu of facing a court-martial and admitted guilt to the stipulated charge and specification.  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.  He further acknowledged he could be deprived of many or all Army benefits as a result of the issuance of such a discharge.

2.  He has provided no evidence or a convincing argument to show his discharge should be upgraded and his military record contains no evidence which would entitle him to an upgrade of his discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a fully honorable or a general discharge.

3.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would have jeopardized his rights.

4.  His desire to have his discharge upgraded so he can qualify for veterans' benefits is acknowledged.  However, the ABCMR does not grant relief solely for the purpose of qualifying an applicant for medical or other benefits administered by the VA or any other Federal agency.

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)                                         AR20120006967



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ABCMR Record of Proceedings (cont)                                         AR20120006967



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