DOCKET NUMBER:  AR20130009744 


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 to a general discharge under honorable conditions.

2.  The applicant states that he served in the Army from 1979 until 1981.  He received a bad discharge because he and another guy went into town in the middle of the night for some beers and then returned to their barracks on base with a prostitute.  They were caught, arrested by the military police, and charged with committing a crime.  He was offered the choice of either appearing before a court-martial or accepting an other than honorable discharge and he elected to accept the discharge.  He contends he made this decision because he did not realize the seriousness of an other than honorable discharge.  Now that he is trying to get his life back in order, he realizes the nature of his discharge is really hurting his chances of getting ahead.  He is trying to provide support to his grandchildren and his parents and wants to make a new start.  He also asks that the Board take his youth and inexperience into account when rendering a decision.

3.  The applicant provides no additional evidence with his application.

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 was born on 21 May 1956 and enlisted in the Regular Army on 10 March 1979 at the age of 22 years, 9 months, and 18 days.  The highest rank/grade he attained while serving on active duty was private first class/E-3.  However, at the time of his separation he held the rank/grade of private/E-1.

3.  The applicant's record contains the following documentation of his disciplinary history:

	a.  Fort Ord (FO) Forms 1-54 (Record of Informal Counseling Session) which show he was counseled for failing to shave, disobeying lawful commands, being absent from his place of duty, substandard performance, conducting personal business during duty hours without permission, rendering a false statement, demonstrating a poor attitude, and the possibility of disciplinary action and/or administrative separation if he did not improve his behavior and performance.

	b.  DA Forms 2627 (Record of Proceedings Under Article 15, Uniform Code of Military Justice (UCMJ)) which document his acceptance of nonjudicial punishment under the provisions of Article 15 of the UCMJ on two occasions for the following offenses:

* Absenting himself from his place of duty
* Being found lying on his bunk when he was supposed to be performing Fire/Security Guard duty
* Failing to go at the time prescribed to his appointed place of duty

	c.  Headquarters, Division Artillery, 2d Armored Division, Special Court-Martial Order Number 16, dated 4 September 1979, which shows he was arraigned and tried before a Special Court-Martial for two specifications of violating Article 86, UCMJ by departing his unit in an absent without leave (AWOL) status on two occasions:  from 2 to 5 July 1979 and from 10 to 23 July 1979.  He pleaded guilty to and was found guilty of both specifications.

	d.  A DA Form 4126-R (Bar to Enlistment/Reenlistment Certificate), dated 30 January 1981, which shows his unit commander initiated action to impose a reenlistment bar against the applicant based upon his aforementioned disciplinary history.  The bar to reenlistment was approved on 10 March 1981.

	e.  A DD Form 458 (Charge Sheet) shows court-martial charges were preferred against him for violating the following Articles of the UCMJ by committing the specifications shown:

		(1)  One specification of violating Article 90 by willfully disobeying a lawful command from a commissioned officer.

		(2)  One specification of violating Article 89 by being disrespectful toward a commissioned officer.

		(3)  Three specifications of violating Article 86 by failing to go to his appointed place of duty on two occasions and for departing his appointed place of duty on another.

4.  On 8 June 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.  Following counseling, the applicant submitted a voluntary written 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.  In his request for discharge, he indicated he understood that by requesting discharge he was admitting guilt to the charge against him or of a lesser included offense that also authorized the imposition of a discharge under other than honorable conditions.  He acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, that 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.  The applicant acknowledged his right to submit statements in his own behalf, but none were included with his request.

5.  The applicant's chain of command recommended approval of his request with an under other than honorable conditions discharge.  On 18 June 1981, the separation authority approved the applicant's discharge request and directed that he be reduced to the lowest enlisted grade and discharged under the provisions of Army Regulation 635-200, chapter 10 with an under other than honorable conditions discharge. 

6.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows that on 26 June 1981 he was discharged accordingly.  He completed 2 years, 2 months, and 6 days of creditable active service.

7.  On 13 April 1983, the applicant was informed that the Army Discharge Review Board, after careful consideration of his military records and all other available evidence, had determined he was properly and equitably discharged and advised him that his request for a change in the type and nature of his discharge had been denied.

8.  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 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, an Under Other than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service at the time.

9.  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 record should be corrected by upgrading his under other than honorable conditions discharge was carefully considered and determined to lack merit.

2.  Records show the applicant was over 23 years of age at the time he began his offenses.  However, there is no evidence that indicates the applicant was any less mature than other Soldiers of the same age who successfully completed military service.  Additionally, his desire to make a new start was considered.  However, a desire for self-improvement alone is not a basis for upgrading a discharge.  

3.  The evidence clearly shows he was a substandard Soldier who had a record of numerous disciplinary infractions and a failure to respond to the rehabilitative efforts exerted by his chain of command.

4.  His record shows he was charged with the commission of numerous offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10 to avoid a trial by court-martial which may have resulted in a felony conviction.

5.  The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time.  There is no evidence of procedural errors which would have jeopardized his rights.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  Further, the applicant's discharge accurately reflects his overall record of service.

6.  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 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)                                         AR20130009744





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ABCMR Record of Proceedings (cont)                                         AR20130009744



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