IN THE CASE OF:	  

		BOARD DATE:	   15 August 2013

		DOCKET NUMBER:  AR20130001645 


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 his under other than honorable conditions (UOTHC) discharge be upgraded.

2.  The applicant states he is a different person today.  He was experiencing some personal problems at the time.  He is a productive member of society having operated his own business.  However, he is currently in the Homeless Veterans program because he was laid off following an on-the-job injury.  He needs his discharge upgraded so he may be eligible for some benefits.  He asks that his 18 months of honorable service be considered.  

3.  The applicant provides no supporting documentary evidence. 

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 1 July 1980, completed training, and was awarded military occupational specialty 19E (Armor Crewman).

3.  The applicant received nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), on 5 April 1982, for illegal drug use.

4.  He was absent without leave (AWOL) from 9 September 1982 through 3 January 1983.  The records show he voluntarily returned to military control and was placed on excess leave on 14 January 1983.

5.  The available records do not include any documentation related to his discharge processing except for a copy of his discharge orders and DD Form 214 (Certificate of Release or Discharge from Active Duty), which show that on 
17 March 1983 the applicant was discharged under Army Regulation 635-200, chapter 10, for the good of the service-in lieu of court-martial.  He had completed 2 years, 4 months, and 22 days of creditable active service with 117 days of lost time due to being AWOL and 63 days of excess leave.

6.  Army Regulation 635-200 (Active Duty Enlisted Administrative Separations) sets forth the basic authority for the separation of enlisted personnel.  It provides the following:

	a.  Chapter 10 provides 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.  The request would have included an admission of guilt.  A UOTHC discharge is normally considered appropriate.  

   b.  Paragraph 3-7a states an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier’s service generally has met the standards of acceptable conduct and performance of duty.  

	c.  Paragraph 3-7b states a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge. 

DISCUSSION AND CONCLUSIONS:

1.  Although the applicant's discharge packet is not available, the evidence of record shows the applicant was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service- in lieu of trial by court-martial.  In connection with such a discharge, the applicant would have been charged with the commission of an offense punishable under the UCMJ with a punitive discharge. Procedurally, the applicant would have been required to consult with defense counsel and to voluntarily, and in writing, request separation from the Army in lieu of trial by court-martial.  In doing so, the applicant  would have admitted guilt to the stipulated offense(s) or a lesser included offense under the UCMJ.  

2.  The above service would normally be characterized as UOTHC.  The applicant would have been aware of this prior to requesting discharge.  

3.  In the absence of evidence to the contrary, it is presumed that the applicant's discharge proceedings were conducted in accordance with law and regulations applicable at the time.  The applicant's character of the service is commensurate with his overall record of service.

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)                                         AR20130001645



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ABCMR Record of Proceedings (cont)                                         AR20130001645



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