IN THE CASE OF:	  

		BOARD DATE:  16 January 2014

		DOCKET NUMBER:  AR20130008615 


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 his discharge is inequitable because:

* it was based on two incidents of failing to go to his appointed place of duty and assaulting a Soldier
* it is disproportionate to the charges
* his service during his first enlistment was honorable
* he was having marital problems causing him to lose focus
* he has successfully been self-employed since his discharge 
* he has been married for 26 years and has a daughter who is currently serving on active duty in the Army
* he did not understand the importance of the characterization of his second period of service and the effect it has on Department of Veterans Affairs benefits until recently

3.  The applicant provides 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 6 December 1977.  He was advanced to the rank/grade of specialist four/E-4 on 1 August 1979.  He reenlisted on 12 September 1980.

3.  The applicant's received nonjudicial punishment under Article 15, Uniform Code of Military Justice, on:

* 19 February 1980, for failing to go to his place of duty on two occasions
* 26 March 1981, for driving drunk, attempting to elude police, and resisting arrest

4.  On 2 July 1981, court-martial charges were preferred against the applicant for two specifications of being absent from his place of duty, drunk driving, operating a vehicle in a reckless manner, two specifications of assaulting two separate Soldiers by driving at them in a manner likely to produce grievous harm, and communicating a threat against a military policeman.  Trial by a special court-martial authorized to award a bad conduct discharge was recommended and the commanding officer so directed.

5.  On 15 July 1981 after consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the provisions of Army Regulation 
635-200 (Personnel Separations – Enlisted Personnel), chapter 10.  He acknowledged that he was guilty of the charges or lesser-included charges and that if the request were accepted he could receive a discharge under other than honorable conditions and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran and that he could expect to experience substantial prejudice in civilian life if he received a discharge UOTHC.

6.  The applicant was discharged UOTHC on 25 August 1981 under the provisions of Army Regulation 635-200, chapter 10.  He completed 3 years, 8 months, and 20 days of creditable service with no lost time.

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

	a.  Paragraph 3-7a provides that an honorable discharge is a separation with honor.  The honorable characterization of service is appropriate when the quality of the Soldier's service generally has met the standards of acceptable conduct and performance of duty.

	b.  Paragraph 3-7b provides that a general discharge is a separation under honorable conditions issued to a Soldier whose military record was satisfactory but not so meritorious as to warrant an honorable discharge.

	c.  Paragraph 3-7c provides that a discharge UOTHC is issued when there is/are one or more acts or omissions that constitute a significant departure from conduct expected of a Soldier.

	d.  Paragraph 3-7c(7) specifically addresses issuance of a discharge UOTHC under the provisions of chapter 10.

	e.  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.

8.  On 8 June 1981, the Army Discharge Review Board denied the applicant's requests to upgrade his discharge and change his narrative reason for his discharge.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's voluntary request for separation for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, was administratively correct and in conformance with applicable regulations.

2.  In addition to two earlier Article 15's, the charges the applicant was facing were more extensive and more serious than he described.

3.  The applicant's misconduct that led to preferral of court-martial charges and ultimately to his discharge clearly did not demonstrate satisfactory performance of duties required of Soldiers.

4.  The applicant's post-service activities are noted; however, these activities are not so exceptionally meritorious as to outweigh the offense(s) that resulted in his discharge.  The mere passage of time and good citizenship is insufficient to warrant a change of the applicant's discharge.

5.  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)                                         AR20130008615



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ABCMR Record of Proceedings (cont)                                         AR20130008615



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