IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120007898 


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 to a general discharge.

2.  He states:

* he has 4 years of meritorious service in the U.S. Army
* he made a mistake in the last year of service, but he thinks it was unfair that his rank was taken and he was given a discharge less than honorable
* he had 3 days left on his enlistment and he had to get out of town to deal with marital problems
* he had car problems and couldn't make it back before his enlistment ended
* he admits it was his fault, but he doesn't think they (Army) should have given him a bad discharge
* he wants a chance to use his Department of Veterans Affairs (VA) benefits

3.  He provides 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 enlisted in the Regular Army on 11 August 1981 for a period of 4 years.  Upon completion of basic and advanced individual training, he was awarded military occupational specialty 05C (Radio Teletype Operator).  He served in Korea from 10 March 1982 to 9 March 1983.  He was promoted to specialist four on 1 July 1983.  

3.  His disciplinary history includes:  

   a.  three adverse counseling statements between August 1983 and August 1984 for being late for formation, being late for reporting for duty, and being delinquent in his uniform clothing deferred payment plan account.
   
   b.  a letter of reprimand, dated 21 May 1984, for driving while intoxicated.
   
   c.  a bar to reenlistment, dated 26 October 1984.  His DA Form 4126-R (Bar to Reenlistment Certificate) indicates he received an Article 15, Uniform Code of Military Justice, on 3 October 1984 for driving while driving privileges were revoked.  The Article 15 proceedings are not available.
   
   d.  his acceptance of nonjudicial punishment under Article 15, Uniform Code of Military Justice on 10 April 1985 for driving while drunk.

4.  On 27 August 1985, charges were preferred against the applicant for being absent without leave (AWOL) from 6 to 26 August 1985.  

5.  On 10 September 1985, an additional charge was preferred against him for wrongfully appropriating a 1978 Ford Pinto, of a value of about $1,125.00, the property of a private first class.  

6.  The complete summary of facts and circumstances concerning his discharge are not available.  However, his service record contains an OSA Form 172 (Case Report and Directive) which indicates:

	a.  On 20 September 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 submitted a statement in his own behalf (but is not available); 

	b.  On 30 September 1985, his unit and intermediate commanders recommended approval with a UOTHC discharge; 

	c.  On 1 October 1985, his senior intermediate commander recommended approval with a UOTHC discharge and the separation authority approved the request for discharge and directed separation with a UOTHC discharge; and 

	d.  On 10 October 1985, the applicant was discharged in the rank of private/E-1.  At the time of his discharge, he had completed 4 years, 1 month, and 9 days creditable active service with 21 days of lost time.

7.  On 23 October 1987, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

8.  On 18 April 1989, this Board denied the applicant's request for an upgrade of his UOTHC discharge to honorable and to change the reason for separation.  His request that his pay grade, time lost, and reenlistment eligibility codes be changed, and that he be issued the Army Good Conduct Medal, were also denied.

9.  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 3-7b 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's service record shows he received adverse counseling statements, a letter of reprimand, a bar to reenlistment, two Article 15s, and he was charged for being AWOL for 21 days.  Additionally, he was charged with wrongfully appropriating a 1978 Ford Pinto while on active duty. 

2.  His statements regarding his marital problems and car problems are acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the misconduct which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.

3.  The applicant states he wants his discharge upgraded so he can be entitled to use his VA benefits.  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.  

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 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)                                         AR20120007898





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120007898



5


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1