IN THE CASE OF:	  

		BOARD DATE:	  14 January 2014

		DOCKET NUMBER:  AR20130008885 


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 his under other than honorable conditions (UOTHC) discharge be upgraded to a general discharge.

2.  The applicant states, in effect:

	a.  He was discharged due to driving under the influence (DUI) while on post.  It was an unfortunate mistake on his part.  He made specialist four (SP4) in less than 2 years and at the time of the incident he had about 5 months left on his 4-year enlistment.

	b.  His legal counsel advised him that if he took a court-martial he would not have his time extended but he thought he would probably get a retraining assignment for 3 months after a 1-month wait to handle the matter.  Being that he was a young man he opted for an administrative discharge.  It was obviously a poor choice at the time.  

	c.  Since being discharged he has had steady employment and he has a reputation as a good citizen.  He has been a truck driver with a good driving record and his conduct as a good citizen exemplifies his character.  His discharge was the result of an earlier poor choice of conduct.

3.  The applicant provides his DD Form 214 (Certificate of Release or Discharge from Active Duty) and three statements of support.


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 20 September 1976 and he held military occupational specialty 11B (Infantryman).  On 24 July 1978, he was assigned to the 1st Battalion, 17th Infantry Regiment, Korea.

3.  On 20 January 1979, he received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ), for one specification each of wrongly possessing with intent to deceive an Armed Forces Liberty Pass and for disorderly conduct.

4.  On or about 14 August 1979, he was assigned to the 502nd Replacement Detachment, Fort Hood, TX.  

5.  On 17 August 1979, he received NJP under the provisions of Article 15, UCMJ, for failing to go at the prescribed time to his appointed place of duty.

6.  On 24 August 1979, he was assigned to the 1st Battalion, 41st Infantry Regiment, Fort Hood, TX.

7.  He received NJP under the provisions of Article 15, UCMJ, as follows on:

* 1 October 1979, for failing to go at the prescribed time to his appointed place of duty
* 24 October 1979, for breaking restriction

8.  On 2 April 1980, court-martial charges were preferred against him for

* two specifications each of being disrespectful in language and deportment to two noncommissioned officers (NCO)
* one specification of operating a vehicle while drunk
* one specification of wrongfully appropriating government property
* one specification of being incapacitated (by intoxication) for the proper performance of his duty
* one specification of wrongfully possessing marijuana

9.  On 18 April 1980, he consulted with legal counsel who advised him of the basis for the contemplated trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge, the maximum permissible punishment authorized under the UCMJ, the possible effects of a request for discharge, and of the procedures and rights that were available to him.  Following consultation with legal counsel, he 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 trial by court-martial.

10.  In his request for discharge, he acknowledged he understood if the discharge request were approved, he might be discharged under other than honorable conditions and be furnished an Under Other Than Honorable Conditions Discharge Certificate.  He also acknowledged he understood he might be deprived of many or all Army benefits, he might be ineligible for many or all benefits administered by the Veterans Administration, he might be deprived of his rights and benefits as a veteran under both Federal and State laws, and he might expect to encounter substantial prejudice in civilian life.

11.  In a statement he submitted in his own behalf, he stated he needed to get out of the Army because of his religion.  Being around a place where there were so many unbelievers hindered him from praying and growing in his faith and stature.  He further stated he had forsaken his religion to get through the Army and it seemed he hit a dead end; he wanted to start all over again.

12.  On 18 April 1980, his immediate commander recommended disapproval of his request for a discharge and stated although he fully supported his (the applicant's) elimination from the service, the charges against him were serious as well as numerous.  For the good order and discipline of his unit, he must be held accountable for his misconduct.  He further stated the applicant was not a member of any recognized religion and followed the teachings of a traveling "prophet of God."

13.  On 21 April 1980, his intermediate commander recommended disapproval of his request for a discharge and stated he concurred with the company commander.  

14.  On 22 April 1980, his senior commander recommended approval of his request for a discharge with the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  He stated his review of the case indicated little good would be served by trial and probable punitive action.  The applicant's record was such that further rehabilitation attempts appeared unwarranted.

15.  On 24 April 1980, the separation authority approved his request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate.  On 15 May 1980, he was discharged accordingly.  

16.  The DD Form 214 he was issued shows he was discharged by reason of conduct triable by court-martial with an under other than honorable conditions characterization of service.  He completed 3 years, 7 months, and 26 days of net active service.

17.  On 22 July 1988, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge and determined his discharge was both proper and appropriate.

18.  The applicant provides three statements of support, dated 27 February 2013, 4 March 2013, and 16 April 2013, wherein three acquaintances all stated he was a devoted father, compassionate person, and a highly-respected member of the community who continually volunteered his time to help others in need of assistance. 

19.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment included 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.  A UOTHC discharge was normally considered appropriate.

20.  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.

21.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is 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 evidence of record confirms the applicant was charged with the commission of several offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial. 

2.  As such, he voluntarily requested a discharge to avoid a trial by court-martial.  His administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reason for separation were appropriate considering all the facts of the case.  

3.  Although the applicant's post-service conduct may be noteworthy, it does not mitigate the fact that he was charged with being disrespectful toward NCOs, DUI, wrongfully appropriating government property, being incapacitated for the proper performance of his duty, and wrongfully possessing marijuana during his military service.

4.  The evidence of record confirms he received NJP on four different occasions for wrongfully possessing a pass, disorderly conduct, failing to go to his appointed place of duty on two separate occasions, and for breaking restriction.

5.  Based on his overall record, his service clearly did not meet the standards of acceptable conduct for Army personnel.  This misconduct also renders his service unsatisfactory.  Therefore, he is not entitled to 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)                                         AR20130008885





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ABCMR Record of Proceedings (cont)                                         AR20130008885



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