IN THE CASE OF:	  

		BOARD DATE:	  18 March 2014

		DOCKET NUMBER:  AR20130012741 


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 upgrade of his under other than honorable conditions (UOTHC) discharge.

2.  The applicant states he was told he was being given a general discharge that would be "automatically" upgraded in 3 months.  He was charged with crimes that never happened.  Also, after repeatedly being told he had time off, his being charged with "going absent without leave (AWOL)" was misleading.  He was told that his wife and daughter would never be allowed to join him while he was at Fort Bragg, which he found to be totally "false."  It was at that time that he began to drink and use drugs heavily.  He continued for numerous years afterward.  Now he is drug and alcohol free.  He is a productive citizen; volunteer football, baseball, and basketball coach; mentor for young children; married and the father of two sons and a daughter.

3.  The applicant provides no additional documentary 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.  On 6 September 1978, the applicant enlisted in the Regular Army.  The highest rank he held was specialist four/pay grade E-4.

3.  On 30 August 1979, pursuant to his plea of guilty, he was convicted by a special court-martial of:

* being AWOL from 6-8 April 1979
* being AWOL from 3-8 May 1979
* attempting to steal ten Ascodeen tablets
* being AWOL from 9-17 July 1979

4.  On 15 January 1981, he accepted nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ) for:

* being AWOL from 3-11 December 1980
* failing on two occasions to go at the time prescribed to his appointed place of duty

5.  On 20 February 1981, NJP was imposed on the applicant for absenting himself without authority from his appointed place of duty.  He appealed the punishment.  His appeal was denied.

6.  On 1 June 1981, court-martial charges were preferred against the applicant for being AWOL from 16 March 1981 to 27 May 1981.

7.  On 1 June 1981, he consulted with legal counsel who advised him of the basis for his contemplated trial by court-martial and the maximum possible punishment under the UCMJ, of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

8.  After consulting with counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200 (Personnel Separations - Enlisted Personnel), chapter 10.

	a.  He indicated he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge. 

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.

	c.  He acknowledged that by submitting a request for discharge he was acknowledging he was guilty of the charge(s) against him or of lesser included offenses which also authorized the imposition of a bad conduct or dishonorable discharge. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge, 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.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life because of a UOTHC discharge.  He waived his rights.

   f.  He elected not to submit a statement on his own behalf.

9.  His chain of command recommended he be given a UOTHC discharge.  On 9 June 1981, the separation authority approved his request to be discharged for the good of the service.

10.  On 21 August 1981, he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in accordance with the separation authority's decision.  The DD Form 214 (Certificate of Release or Discharge from Active Duty) issued at that time shows his service was characterized as UOTHC.  It also shows he completed 2 years, 8 months, and 16 days of creditable active military service.

11.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

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

	a.  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.

	b.  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.  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 contentions are noted.  However, the evidence of record does not support his request for an upgrade of his UOTHC discharge.

2.  The Army does not have, and has never had, any policy to automatically upgrade a discharge based on the passage of time.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  All requirements of law and regulation were met and his rights were fully protected throughout the separation process.

4.  He received NJP on two occasions, was convicted by a special court-martial, and he was charged with additional offenses for which he could have been punished under the UCMJ with a punitive discharge.  He admitted guilt to the charges preferred against him.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  Therefore, he is not entitled to an upgrade of his 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)                                         AR20130012741



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ABCMR Record of Proceedings (cont)                                         AR20130012741



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