IN THE CASE OF:	   

		BOARD DATE:	  26 September 2013

		DOCKET NUMBER:  AR20130002765 


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 an honorable discharge.

2.  The applicant states:

   a.  He is a changed person and would like the Soldiers at Fort Campbell, KY, to know he is sorry for what he put them through.  An upgrade of his discharge should be considered because he was not told he had to request a correction.
   
   b.  He served in the military from 1979 to 1981 and had never been in trouble. He attended air assault school, was found qualified, and awarded his badge.  When he returned to his company he learned a family member had died and had been buried before he knew about it.  He was really hurt.  He went to the Post Exchange to pick up a few items and a car tried to run him over and he jumped into a ditch.  The car stopped and the three occupants got out and beat him and then left him for dead.
   
   c.  He could not leave his room for four days which was just like being absent without leave (AWOL).  He was placed in confinement for 30 days and treated really bad.  He served 17 days of confinement and was returned to the company. He was told he would receive a general discharge, but was not told that he had to submit a request to the Board for an upgrade.  He would like to be able to tell his grandchildren that he received an honorable discharge.  He was a Soldier until he became depressed.  He would like to apologize to the Soldiers of the 101st Airborne Division.  
   d.  He asked the Honea Path Police to go back in his record to 1981, but they only went back for 10 years.  The only thing on his record is a traffic ticket and an open container.  

3.  The applicant provides a copy of his DD Form 214 (Certificate of Release or Discharge from Active Duty), six character reference letters, and a Request for Honea Path Police Department Criminal History Information.

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 30 July 1979.  He completed training and he was awarded military occupational specialty 11H (Heavy Antiarmor Weapons Crewman).  He was advanced to pay grade E-2 on 1 January 1980. 

3.  On 4 August 1980, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice, for failing to obey a lawful order and as a result of previous indulgence in intoxicating liquor he was incapacitated for the proper performance of his duties on or about 19 July 1980.  His punishment included 30 days confinement and a forfeiture of $100.00 pay for two months.

4.  On 3 November 1980, the first sergeant (1SG), Correctional Custody Facility (CCF), requested the applicant be removed from the CCF and disciplinary action 
be taken against him for willfully disobeying an order of a noncommissioned officer (NCO) and treating with contempt and being disrespectful toward an NCO and threatening him with bodily harm.  The 1SG stated the applicant refused to do anything he was told to do by the NCOs of the CCF.  The applicant had continuously disrupted the operation and training in the CCF.  The attitude and conduct displayed by the applicant made it impossible to motivate or correct him.

5.  A DD Form 458 (Charge Sheet), dated 6 November 1980, was prepared by the Commander, Combat Support Company, 1st Battalion, 101st Airborne Division.  The applicant was charged with one specification each of willfully disobeying a lawful order from his superior NCO and being disrespectful toward three different superior NCOs on or about 1 November 1980.

6.  On 12 December 1980, after consulting with counsel, 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 court-martial.  In doing so, he acknowledged that he had not been coerced with respect to his request for discharge.  He admitted that he was guilty of the charge against him and had no desire for further military service.  He also acknowledged that he could be discharged under conditions other than honorable and furnished a UOTHC discharge; as a result of the issuance of such a discharge, he could be deprived of many or all Army benefits; and that he could be ineligible for many or all benefits administered by the Veterans Administration. He waived his rights and elected to submit a statement in his own behalf.

7.  In his statement, the applicant stated he did not want to be found guilty and go to Kansas for retraining.  He thought for the time he had been there he tried to do his job really well.  He was found guilty on his Article 15 for being drunk on duty and his punishment included $200.00 plus 30 days confinement.  He went to the CCF and they said he was talking back and he did talk too much.  He didn’t like to do the same thing over each day.  He had never been AWOL and had never been court-martialed.  He thought he could make it in the civilian world better, but he did not need the UOTHC discharge.

8.  On 8 January 1981, the appropriate authority approved the applicant's request for discharge for the good of the service and directed the issuance of a UOTHC discharge and reduction to pay grade E-1.

9.  He was discharged in pay grade E-1 on 12 January 1981, under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial.  He completed 1 year, 5 months, and 13 day of net active service with no time lost.

10.  He provides six character reference letters wherein the individuals attested to the applicant being a dependable, hard working, faithful family man, a good church worker, and a man of his word.  He also provides a copy of a Honea Path Policy report, dated 16 November 2012, which shows he had no arrest record.

11.  Army Regulation 635-200, in effect at the time, set forth the basic authority for the separation of enlisted personnel.  The regulation stated in:
   a.  Chapter 10, a member who committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service at any time after court-martial charges  were preferred and must include the individual’s admission of guilt.  A discharge UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a, 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, 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.  There is no evidence of record and the applicant provided none to show he was severely beaten and left for dead.

2.  The evidence of record shows the applicant accepted NJP for being drunk on duty.  His punishment included 30 days of confinement.  In November 1980, he was charged with disobeying the CCF NCOs and court-martial charges were preferred against him.  He voluntarily, willingly, and in writing requested discharge from the service under the provisions of Army Regulation 635-200, chapter 10.  In his statement he stated he thought he could make it in the civilian world better.

3.  He was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharge actions processed under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He waived his opportunity to appear before a court-martial to prove his innocence.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  

4.  Contrary to his contention that he was told he would be issued a general discharge, the evidence of record clearly shows he acknowledged he could be discharged UOTHC discharge and the results of the issuance of such a discharge.

5.  The evidence shows his misconduct and unsatisfactory performance diminished the quality of his service.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence that would entitle him to an upgrade of this discharge.

6.  Without evidence to the contrary, it appears his administrative separation was accomplished in compliance with applicable regulations with no procedural errors that would tend to jeopardize his rights.  He was properly discharged in accordance with pertinent regulations with due process.

7.  The ABCMR does not grant requests for upgrade of discharges merely because an applicant was not advised to submit a request for an upgrade.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge, as is now being done in the applicant’s case.  

8.  In view of the foregoing, there is an insufficient evidentiary basis for granting the applicant an honorable or a general 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)                                         AR20130002765



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ABCMR Record of Proceedings (cont)                                         AR20130002765



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