BOARD DATE:	  16 October 2012

		DOCKET NUMBER:  AR20120007585 


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 to an honorable discharge (HD).

2.  The applicant states:

	a.  he enlisted in the Army at the age of seventeen and his first tour of duty was to Korea which was also his first time away from home;

   b.  he was very impressed with the older Soldiers and trying to fit in and impress them eventually got him into a lot of trouble;
   
   c.  he was told he could not win his case and would most likely spend 
3-5 years in prison causing him to believe he had no other choice but to accept a discharge for the good of the service;
   
   d.  it has been 40 years since his discharge and he desires to acknowledge his immaturity; and
   
   e.  although he was told he was a failure, he has been a model citizen, paid his dues with his life’s lessons, has worked hard, raised a family of college-educated children, earned an Associates and Bachelor’s Degree, is pursuing a Master’s Degree, pastors a one hundred plus member Methodist Church, and since 1988 has worked as a software developer with the hopes of retiring in a few years.

3.  The applicant provides:

* DD Form 214 (Report of Separation from Active Duty)
* 6 pages of Military Personnel Record Jacket documents
* Certificate of Recognition
* Amalgamated Clothing and Textile Workers Union Graduation Certificate
* 4 character reference statements

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 5 July 1977 at the age of 17.  He was trained in and served in military occupational specialty 36K (Tactical Wire Operations Specialist).

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to private first class (PFC) on 1 March 1978, and this was his highest rank held.  It also shows he was reduced on two separate occasions.

4.  On 1 August 1978, a DD Form 458 (Charge Sheet) was prepared preferring court-martial charges against the applicant for violating the following Articles of the Uniform Code of Military Justice (UCMJ) on 31 July 1978:

* Article 89 – being disrespectful and using profanity towards his superior commissioned officer 
* Article 90 – offering violence, repeating profanities, and pointing his finger in the face of his superior commissioned officer
* Article 91 – willfully disobeying a lawful order given him by his superior noncommissioned officer


5.  On 29 August 1978, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a UOTHC discharge, and of the procedures and rights that were available to him.  Subsequent to receiving this legal counsel, he voluntarily requested discharge in lieu of trial by court-martial under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations - Enlisted Personnel).

6.  In his request for discharge the applicant acknowledged he understood he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life if he were issued a UOTHC discharge.

7.  On 15 September 1978, the separation authority approved the applicant's request for discharge and directed that he be discharged in the lowest enlisted grade under the provisions of Army Regulation 635-200, chapter 10, with a UOTHC discharge.

8.  On 12 October 1978, the applicant was discharged accordingly.  His DD Form 214 shows he completed 1 year, 3 months, and 8 days of active military service for the period covered.

9.  The applicant provides four character reference statements from individuals who support his request for a discharge upgrade and who indicate he is an upstanding individual, loving father and husband, dedicated worker, honest and reliable pillar of the community, extremely conscientious, a man of God, and model pastor.  The applicant also provides course completion certificates he received during and subsequent to his military service.

10.  On 28 July 1996, after carefully reviewing the applicant’s record and the issues he presented, the Army Discharge Review Board concluded the applicant’s discharge was proper and equitable, and voted to deny his request for an upgrade.

11.  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 UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a provides that an HD 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 (GD) 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 records show the applicant was 17 years of age at the time of his enlistment and 19 years old at the time of his discharge.  There is no evidence that indicates he was any less mature than other Soldiers of the same age who successfully completed military service.  Therefore, his contention that his age led to his indiscipline is not sufficient as a basis for upgrading his discharge.

2.  While the applicant’s post-service accomplishments are certainly noteworthy, the evidence of record shows the applicant was charged with the commission of offenses punishable under the UCMJ with a punitive discharge for repeatedly being disrespectful, offering violence, and disobeying lawful orders.  After consulting with legal counsel, the applicant voluntarily requested discharge in lieu of trial by court-martial.

3.  The applicant’s administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons were appropriate considering all the facts of the case.  His service clearly did not support a GD or HD at the time of his discharge and it does not support an upgrade now.

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)                                         AR20120007585





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ABCMR Record of Proceedings (cont)                                         AR20120007585



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