IN THE CASE OF: 

		BOARD DATE:  27 August 2013

		DOCKET NUMBER:  AR20130001892


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 discharge under other than honorable conditions (UOTHC).

2.  The applicant states the offenses should not have resulted in his discharge.

3.  The applicant provides no supporting documentation.

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 5 July 1978.  He completed training and was awarded military occupational specialty 71L (Administrative Specialist).  He reenlisted on 14 October 1981.

3.  His DA Form 2-1 (Personnel Qualification Record – Part II) shows he served in Korea from 21 March 1980 to 18 March 1981 and was awarded the Army Good Conduct Medal, Army Service Ribbon, and the Expert Marksmanship Qualification Badge with Rifle Bar.  The highest rank he attained was specialist four/E-4.  

4.  On 24 January 1979, charges were preferred against the applicant for being AWOL from 18 March to 22 March 1982, two specifications of being disrespectful in language and/or deportment towards a superior noncommissioned officer, and one specification of willfully disobeying a lawful order from a superior noncommissioned officer.

5.  He consulted with counsel and he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  He acknowledged he understood the elements of the charges against him and admitted he was guilty of at least one of the offenses which authorized a punitive discharge.  He also acknowledged he understood he might receive a UOTHC discharge which would deprive him of many or all Army benefits and he might be ineligible for veterans' benefits administered by the Veterans Administration.  He further acknowledged he understood he could expect to encounter substantial prejudice in civilian life if he were issued an UOTHC discharge.  He also indicated he had received legal advice, but his request for discharge had been made voluntarily and it reflected his own free will.  

6.  The applicant's chain of command recommended approval of his voluntary request for discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  The separation authority approved the recommendation on 12 April 1982.

7.  On 26 April 1982, the applicant was so discharged under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  He completed a total of 3 years, 9 months, and 18 days of active duty service.

8.  On 1 July 1984, the Army Discharge Review Board determined he had been properly discharged and denied his request for a change in the type and nature of his discharge.  

9.  Army Regulation 635-200 provides 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 or general discharge is authorized, a discharge UOTHC was considered appropriate at the time.

	b.  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.

	c.  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.

10.  The Table of Maximum Punishments in the Manual for Courts-Martial shows that a punitive discharge is authorized for offenses of willfully disobeying a lawful order from a noncommissioned officer and showing contempt or disrespect toward a superior noncommissioned officer. 

DISCUSSION AND CONCLUSIONS:

1.  The applicant has not provided any evidence or a sufficiently mitigating argument to warrant an upgrade of his discharge.

2.  Based on his record of misconduct, including offenses which could have resulted in a punitive discharge, the applicant's service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to a general discharge.

3.  The applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, even after appropriate and proper consultation with legal counsel, indicates he wished to avoid trial by court-martial and the punitive discharge he might have received.  His service was characterized by the nature of his offenses and the circumstances of his separation and does not warrant an upgrade to honorable or general.

4.  In view of the foregoing, there is no 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 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)                                         AR20110020828



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ABCMR Record of Proceedings (cont)                                         AR20130001892



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