IN THE CASE OF:	  

		BOARD DATE:  3 September 2013

		DOCKET NUMBER:  AR20130000868 


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 an upgrade of his under other than honorable conditions (UOTHC) discharge to a general discharge.

2.  He states, in effect:

   a.  His record is unjust.  His performance problems surfaced because of the inequitable treatment he received at Fort Stewart, GA.  
   
   b.  He was married and was sent to the field for extended periods of training while his peers were not required to go through the same amount of training.  These factors and others placed a burden on his marriage.  Fort Stewart housing for married couples was substandard and further exacerbated the issues that eventually resulted in his UOTHC discharge.
   
   c.  There was no relief or redress given so he went absent without leave (AWOL).  He believes his chain of command could have resolved the situation in a different manner and he would not have had performance issues.

3.  He provides his DD Form 214 (Report of Separation from Active Duty) and documents from the Department of Veterans Affairs Regional Office in Milwaukee, WI.  


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.  After completing prior service in the Army National Guard, the applicant enlisted in the Regular Army on 7 March 1977.  He completed advanced individual training at Fort Huachuca, AZ and was reassigned to Fort Stewart, GA in duty military occupational specialty 17K (Ground Surveillance Radar Operator).

3.  On 10 November 1977, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for being AWOL from 17 October to 4 November 1977.  

4.  On 31 May 1978, charges were preferred against the applicant for being AWOL from 11 November 1977 to 18 May 1978.

5.  On 1 June 1978, he consulted with legal counsel and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial.  In doing so, he admitted guilt to the offense charged and acknowledged he understood he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued to him.  He submitted statements in his own behalf.  He stated he entered the Army because he wanted to travel and to get an education.  He got married while he was in the Army.  The money he received was not enough to provide for his wife and pay his bills so they fell into debt.  

6.  On 22 June 1978, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial.  He directed that the applicant be reduced to the lowest enlisted grade and furnished a UOTHC Discharge Certificate.

7.  He was discharged on 5 August 1978 with a UOTHC discharge after completing 10 months and 4 days of creditable active service with 207 days of lost time.

8.  There is no evidence the applicant petitioned the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

9.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  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 UOTHC discharge 
is normally considered appropriate.

10.  Army Regulation 635-200, paragraph 3-7a provides that an honorable discharge 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.

11.  Army Regulation 635-200, 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 contends his performance problems surfaced because of the inequitable treatment he received at Fort Stewart, GA.  However, his service record is void of evidence to support his claims.  

2.  The applicant's contentions regarding his marital problems are acknowledged.  However, he had many legitimate avenues through which to obtain assistance or relief without committing the various offenses which led to his discharge.  His personal problems are not sufficiently mitigating to warrant an upgrade of his discharge.
3.  His service record shows he received one Article 15, was charged with being AWOL, and has a record of 207 days of lost time.

4.  His voluntary request for discharge 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.  His service record does not indicate the request was made under coercion or duress.

5.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  The evidence of record further does not indicate the actions taken in his case were in error or unjust.  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 an honorable or a general discharge, and the applicant provides insufficient evidence/argument why it should be upgraded now.

6.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant's 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)                                         AR20130000868



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ABCMR Record of Proceedings (cont)                                         AR20130000868



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