IN THE CASE OF:	

		BOARD DATE:	  15 October 2013

		DOCKET NUMBER:  AR20130002386 


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

2.  The applicant states, in effect, that he completed his service warranting an honorable discharge.

3.  The applicant provides no additional 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.  On 27 January 1984, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 76W (Petroleum Supply Specialist).  The highest rank he held was private first class.
3.  A DD Form 458 (Charge Sheet) shows that on 25 September 1985 he was charged with being Absent Without Leave (AWOL) from 16 August to 21 September 1985.  

4.  On 25 September 1985, he consulted with legal counsel, who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment under the Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.  

5.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.  

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge against him or of a lesser included offense which also authorized the imposition of a bad conduct or dishonorable discharge. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.

	f.  He waived his rights.  He elected not to provide a statement in his own behalf.  

6.  On 4 October 1985, his chain of command recommended he be given a UOTHC discharge.
7.  On 2 December 1985, the separation authority approved his request to be discharged for the good of the service.

8.  On 30 January 1986, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in accordance with the separation authority's decision.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows his service was characterized as UOTHC.  It also shows he completed 1 year, 10 months, and 
29 days of total creditable active military service with 36 days of time lost.
  
9.  On 28 May 1987, the Army Discharge Review Board denied the applicant's request to upgrade his UOTHC discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  

	a.  Chapter 10 of the version in effect at the time provided that a Soldier who committed an offense or offenses, the punishment for which included a bad conduct or dishonorable discharge, could submit a request for discharge for the good of the service at any time after court-martial charges were preferred.  The Soldier's written request would include an acknowledgement that the Soldier understood if his or her request for discharge were accepted, the Soldier could be discharged under conditions other than honorable and furnished an Under Other Than Honorable Conditions Discharge Certificate.  They would also acknowledge that they had been advised and understood the possible effects of a discharge UOTHC; and that, as a result of the issuance of such a discharge, would be deprived of many or all Army benefits; that they may be ineligible for many or all benefits administered by the Veterans Administration; and that they may be deprived of their rights and benefits as a veteran under both Federal and State laws.  They would further acknowledge that they understood they may expect to encounter substantial prejudice in civilian life because of a discharge UOTHC.

	b.  An honorable discharge was a separation with honor and entitled the recipient to benefits provided by law.  The honorable characterization was appropriate when the quality of the member’s service generally met the standards of acceptable conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization was clearly inappropriate.

	c.  A general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention is noted.  However, the available evidence does not support his request that his UOTHC discharge be upgraded.

2.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He was charged with being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

3.  In view of the foregoing, there is no basis for granting the applicant a general discharge or an honorable discharge.

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)                                         AR20130002386



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ABCMR Record of Proceedings (cont)                                         AR20130002386



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