IN THE CASE OF:	   

		BOARD DATE:	  20 June 2013

		DOCKET NUMBER:  AR20120020677 


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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states his undiagnosed mental conditions and age affected his judgment at the time of the incident.

3.  The applicant provides no additional documents.

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 initially enlisted in the Regular Army (RA) on 6 August 1976, at the age of eighteen.  He held and served in military occupational specialty 11C (Indirect Fire Infantryman).  He served on active duty until he was honorably discharged for the purpose of immediate reenlistment on 25 August 1979, having completed 3 years of creditable active duty service.  On 26 August 1979, the applicant reenlisted in the RA.  

3.  His DA Form 2-1 (Personnel Qualification Record) shows he was promoted to specialist four/E-4 on 31 October 1977, and this was the highest rank he attained while serving on active duty.  It also shows he was twice reduced:  to private first class/E-3 on 21 February 1980 and to private/E-1 on 20 January 1981.

4.  Item 21 (Time Lost) of the applicant's DA Form 2-1 shows he accrued 225 days of lost time as a result of being absent without leave (AWOL) on two separate occasions from 1 – 20 August 1978 and from 13 May – 3 December 1980.  His record also shows he accepted non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 8 September 1978 and 11 March 1980 for these AWOL offenses 

5.  On 12 June 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for violating Article 86 of the UCMJ for being AWOL from on or about 13 May 1980 through an unknown date.

6.  The applicant's Army Military Human Resource Record (previously known as the Official Military Personnel File) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a properly-constituted DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations-Enlisted Personnel), in lieu of trial by court-martial.

7.  The applicant's DD Form 214 also confirms he was discharged on 10 March 1981 with a UOTHC characterization of service after completing a total 3 years, 11 months, and 24 days of creditable active military service.

8.  The available record is void of any medical treatment records or documents that indicate he was ever treated for a disabling medical or mental condition during his period of service.

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

10.  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 discharge (HD) or general discharge (GD) is authorized, a UOTHC discharge 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 provides that a 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded because his undiagnosed mental condition and age affected his judgment.  However, there is no evidence available that shows the applicant suffered from a disqualifying mental or physical condition during his period of military service.  Further, his ability to complete 3 years of honorable active duty service prior to the end of his initial enlistment confirms that his age at that time did not affect his ability to effectively serve in the Army.  

2.  The applicant's record is void of the specific facts and circumstances surrounding his discharge processing; however, it does contain a properly-constituted DD Form 214 that identifies the reason and characterization of the applicant's discharge.  This document confirms the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service and that he received a UOTHC discharge.  This separation document carries with it a presumption of government regularity in the separation process.

3.  In connection with such a discharge, the applicant was charged with the commission of an offense punishable with a punitive discharge under the UCMJ. He voluntarily requested separation from the Army in lieu of trial by court-martial and procedurally he was required to consult with defense counsel.  In doing so, he would have admitted guilt to the stipulated offense(s) under the UCMJ that authorized the imposition of a punitive discharge.

4.  Absent evidence to the contrary, it is concluded that all requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The UOTHC discharge the applicant received was normal and appropriate under the regulatory guidance and considering his two AWOL offenses, his service did not support a GD or an HD at the time of his discharge nor does it 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)                                         AR20120020677





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20120020677



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1