IN THE CASE OF:	  

		BOARD DATE:  3 September 2013

		DOCKET NUMBER:  AR20130003986 


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, in effect an upgrade of his under other than honorable conditions (UOTHC) discharge to general discharge (GD).

2.  The applicant states:

* He thought he was receiving a GD
* In December 2012, he requested a copy of his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) and discovered it showed a UOTHC
* He would like for his military records to be reviewed and his DD Form 214 corrected

3.  The applicant provided no additional 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 27 September 1972 and attended basic combat training (BCT) at Fort Leonard Wood, Missouri during the period 5 October 1972 through 1 December 1972. 

3.  The applicant's record shows that on 11 December 1972 he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for being absent without leave (AWOL) during the period 5 December 1972 through 8 December 1972.

4.  A DD Form 458 (Charge Sheet) shows charges were preferred against him on 3 February 1971, for AWOL during the period 11 December 1972 through 9 April 1973 and 16 April 1973 through 29 June 1973.

5.  On 16 June 1973, the applicant was advised by legal counsel of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the UCMJ, of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.  Having been so advised, he voluntarily submitted a request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10, for the good of the service - in lieu of trial by court-martial.

6.  The applicant acknowledged:

	a. he was making the request of his own free will and he had not been subjected to any coercion whatsoever by any person;

	b.  he had been advised of the implications that were attached to his request and that by submitting his request he also acknowledged he was guilty of the charges against him or of a lesser-included offense that also provided for the imposition of a bad conduct or a dishonorable discharge;

	c.  he did not desire further rehabilitation or desire to continue in the military; 

	d. he understood if his request was accepted he could be issued a UOTHC discharge and furnished an Undesirable Discharge Certificate, he understood the effects of such a discharge, and he understood that as a result of the issuance of such a discharge, he would be deprived of many or all Army benefits including all benefits administered by the Veterans Administration (VA);

	e.  he understood he could expect to encounter substantial prejudice in civilian life if he was issued an undesirable discharge; and

	f.  he understood once his request for discharge was submitted, it could only be withdrawn with the consent of the commander who exercised court-martial authority.

7.  In the applicant's personal statement that was submitted with his request for discharge, he stated that he could not adjust to the military life, his girlfriend was pregnant and he wanted out of the military as quick as possible to live a normal life.  He further stated his mother had a nervous breakdown from worrying about his happiness and needed him home to help take care of the farm.  He also stated he has gone AWOL several times and had gotten caught, and he has had problems with drugs since joining the military and he wants out.

8.  On 26 July 1973, the separation authority approved the applicant's request for discharge and directed that he be issued a UOTHC.  On 8 August 1973, the applicant was discharged accordingly.  The applicant's DD Form 214 confirmed he completed 3 months and 28 days of total active service with 196 days of time lost due to being AWOL and in confinement.

9.  On 22 December 1976, the Army Discharge Review Board denied the applicant's petition for an upgrade of his discharge.

10.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 of that regulation provides, in pertinent part, 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 is normally considered appropriate.

11.  Army Regulation 635-200, 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.

12.  Army Regulation 635-200, 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.  

DISCUSSION AND CONCLUSIONS:

1.  The applicant's contention that his discharge should be upgraded to a GD has been carefully considered.  However, it was determined that there is insufficient evidence to support this request.

2.  The available evidence shows he was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  The record shows that after consulting with legal counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial.  In his request, he admitted guilt to the charges against him or of a lesser included offense that also authorized the imposition of a bad conduct or dishonorable discharge.

3.  His voluntary request for discharge under the provisions of chapter 10, Army Regulation 635-200, for the good of the service to avoid trial by court-martial was administratively correct and in conformance with applicable regulations.  There is no indication the request was made under coercion or duress.

4.  Based on this record of indiscipline, which includes 196 days of lost time and in view of the fact he voluntarily requested discharge to avoid a court-martial that could have resulted in a punitive discharge, his overall record of service did not support the issuance of a general discharge by the separation authority at the time and it does not support an upgrade of his discharge now.

5.  In view of the foregoing, the applicant's request should be denied.

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)                                         AR20130003986



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ABCMR Record of Proceedings (cont)                                         AR20130003986



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