IN THE CASE OF:	  

		BOARD DATE:	    20 August 2013

		DOCKET NUMBER:  AR20130001798 


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 character of service be changed from under other than honorable conditions (UOTHC) to an honorable discharge (HD).

2.  The applicant states the Department of Veteran Affairs (VA) has determined his service to be honorable and not a bar to benefits.

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty) and a letter from the VA office in Boston, MA.

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 21 March 1978.  He completed basic combat and advanced individual training and was awarded military occupational specialty (MOS) 11B (Infantryman).  The highest rank/grade he attained while serving on active duty was specialist four/SP4.

3.  The applicant's record shows he was punished under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following dates:

   a.  12 November 1981, for using disrespectful language toward a superior noncommissioned officer; and
   
b.  1 July 1982, for failing to go to his appointed place of duty.

4.  The applicant's record shows he was absent without leave (AWOL) during the periods 2 February 1979 through 22 February 1979 and 5 August 1982 through 9 August 1982.

5.  The applicant's record shows he was confined by military authority during the periods 9 August 1982 to 12 August 1982 and 10 September 1982 to 17 September 1982.

6.  The facts and circumstances of the applicant's discharge are not available for review with this case.  However, his record contains a duly-constituted DD Form 214 that shows he was discharged on 27 September 1982 under the provisions of chapter 10 of Army Regulation 635-200 (Personnel Separations) in lieu of a court-martial with a character of service of UOTHC.  This form also shows he completed a total of 4 years, 5 months, and 7 days of creditable active service.

7.  The applicant submitted a letter from the VA which states his service from 21 March 1978 through 27 September 1982 is honorable for VA purposes and is not a bar to VA benefits under provisions of 38 CFR, paragraph 3.12(d). 

8.  There is no indication he applied to 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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

10.  Army Regulation 635-200, 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.

11.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge (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's request that his discharge be upgraded to an HD was carefully considered and it was determined there is insufficient evidence to support this request.

2.  During the period of service under review the applicant was punished on several occasions for acts of indiscipline and his records show repeated acts of AWOL and military confinement.

3.  The applicant's record is void of the facts and circumstances that led to his discharge; however, the applicant’s record contains a DD Form 214 that shows he was discharged UOTHC in lieu of trial by court-martial on 27 September 1982 under the provisions of Army Regulation 635-200, chapter 10.

4.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  It is presumed that all requirements of law and regulation were met and his rights were fully protected throughout the separation process.

5.  Although the offense(s) which formed the basis for his chapter 10 discharge is not known, the punishment for that offense(s) could have included a punitive discharge had the applicant been court-martialed.  Based upon that offense(s) and his prior record of indiscipline, which included 27 days of AWOL and 12 days of military confinement, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to the 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)                                         AR20130001798



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ABCMR Record of Proceedings (cont)                                         AR20130001798



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