IN THE CASE OF:	  

		BOARD DATE:	  14 May 2013

		DOCKET NUMBER:  AR20120019315 


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.  The applicant states the chaplain's assistant slept with his wife and covered it up.  His emotions made him go absent without leave (AWOL).

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* letters of support from a pastor, his employer, and a senior project manager
* State of Florida Notary Public commission

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.  On 9 October 1984, he enlisted in the Regular Army for a period of 4 years.  After completing initial entry training, he was awarded military occupational specialty 62B (Construction Equipment Repairer).  

3.  A DD Form 458 (Charge Sheet), dated 21 April 1987, shows he was charged with being AWOL from 8 February 1987 to 18 April 1987.  

4.  On 22 April 1987, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.  

5.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge.

	f.  He waived his rights.  He elected not to provide a statement in his own behalf.  

6.  On 4 May 1987, his chain of command recommended he receive a UOTHC discharge.

7.  On 6 May 1987, the separation authority approved his request to be discharged for the good of the service.

8.  On 4 June 1987, he was discharged in accordance with the separation authority's decision.  The DD Form 214 issued at that time shows his service was characterized as UOTHC.  

9.  He provides a letter of support from Alternative Concept Care Services stating he had been an employee of the agency for over a year.  He was an outstanding person both personally and professionally.

10.  He provides a statement from a pastor who states the applicant had attended the church for approximately 3 years.  The pastor states he was unaware of any criminal or other demoralizing activities of the applicant.

11.  He provides a statement from a senior project manager who states he has known the applicant in excess of 40 years.  He states he believes the applicant to be a person of the highest moral character and integrity.

12.  He provides a copy of a State of Florida Notary Public commission.

13.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge were accepted, the Soldier could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  They would also acknowledge that they had been advised and understood the possible effects of a discharge UOTHC; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Veterans Administration; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge that they understood they may expect to encounter substantial prejudice in civilian life because of a discharge UOTHC.

	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.

DISCUSSION AND CONCLUSIONS:

1.  The available evidence does not support the applicant's request that his UOTHC discharge be upgraded to a general discharge.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  Though the letters of support and Notary Public commission may indicate he is a productive member of society, this does not mitigate the misconduct that led to his discharge.

4.  In view of the foregoing, there is no basis for granting the applicant a general discharge.

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)                                         AR20120019315



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ABCMR Record of Proceedings (cont)                                         AR20120019315



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