IN THE CASE OF:	  

		BOARD DATE:	  8 January 2013

		DOCKET NUMBER:  AR20120009830 


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 that his under other than honorable conditions (UOTHC) discharge be upgraded to an honorable discharge (HD).

2.  The applicant states he was following the instructions from his supervisor and was blamed unfairly.  He had a perfect record until this injustice.

3.  The applicant provides no supporting documentation. 

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 13 June 1966, completed training, and was awarded the military occupational specialty 94B (Cook).
3.  In accordance with regulations as then in effect, the applicant was honorably discharged with immediate reenlistment on 12 June 1968, 22 May 1974, and 23 February 1977.  

4.  The record shows he was promoted to sergeant first class on 4 November 1976 and contains no evidence of any derogatory comments, negative counseling, or disciplinary actions prior to the incidents that led to his discharge.  

5.  On 20 November 1978, the applicant was serving as a mess sergeant at Fort Bragg, NC when court-martial charges were initiated.  The charges included eight specifications of making a false official record, eight specifications of conspiring to make a false official record, and five specifications of larceny of government property.

6.  On 20 February 1979 after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request, under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that he was guilty of the charges or lesser included charges and that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.  He declined to submit a statement on his own behalf.

7.  The general court-martial authority accepted and approved the discharge request, directing the applicant be reduced to the lowest enlisted grade and receive a UOTHC discharge.

8.  The applicant was discharged on 20 March 1979.  He had 2 years and 27 days of creditable service during his last enlistment with 10 years, 6 months, and 11 days of prior active duty.  He was authorized the Bronze Star Medal, Army Commendation Medal, Good Conduct Medal (3rd award), National Defense Service Medal, Vietnam Service Medal with 1 silver and 2 bronze service stars, Republic of Vietnam Campaign Medal, and the Republic of Vietnam Gallantry Cross with Palm Unit Citation. 

9.  On 29 May 2001, the applicant was issued an Honorable Discharge Certification of Military Service for the period 13 June 1968 through 22 May 1974. The record does not contain any DD Forms 214 for any of his enlistments except the last one.  
10.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the policies and procedures for enlisted personnel separations.  Chapter 3 outlines the criteria for characterization of service.  

	a.  Paragraph 3-7a states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the Soldier’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.

	b.  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.

	c.  Paragraph 3-7c states that a discharge UOTHC is an administrative separation from the Service under conditions other than honorable.  It may be issued for misconduct, fraudulent entry, security reasons, or discharge in lieu of trial by court-martial. 

	d.  Chapter 10 of that regulation provides, in pertinent part, that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge, may at any time after the charges have been preferred, submit a request for discharge for the good of the service in lieu of trial by court-martial.  A discharge UOTHC is normally considered appropriate.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, in lieu of trial by court-martial, was administratively correct and in conformance with applicable regulations.  There is no indication that the request was made under coercion or duress.

2.  The record does not contain and the applicant has not provided, any evidence that he was following instructions from his supervisor when he committed the offenses that led to his discharge.

3.  The applicant's record prior to his last enlistment was very good as documented by his awards and the issuance of the Honorable Discharge Certification of Military Service.  He is justifiably proud of that service.  However, his significant departure from the accepted behavior of a Soldier of his rank and position during the period of service under consideration warrants the UOTHC.

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)                                         AR20120009928



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ABCMR Record of Proceedings (cont)                                         AR20120009830



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