IN THE CASE OF: 

		BOARD DATE:	    22 April 2014

		DOCKET NUMBER:  AR20130014215 


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.

2.  He states his attorneys told him to take out the word "hinder" when he used it in his statement, saying that he didn't want the kind of discharge that would "hinder" him in returning to civilian life.  He believes his attorneys would have allowed the word "hinder" if they would have considered his civilian life.

3.  He provides his DD Form 214 (Certificate of Release or Discharge from Active Duty).

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 17 January 1978.

3.  On 6 February and 20 December 1978, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice for the following offenses:

* willfully suffering an M16A1 Rifle, a value of about $179.00, military property of the United States, to be damaged by throwing it against concrete
* being disrespectful in language and deportment toward his superior noncommissioned officer (NCO) 
* failing to go at the time prescribed to his appropriate place of duty

4.  On 28 September 1979, charges were preferred against the applicant for failing to go at the time prescribed to his appointed place of duty, disobeying a lawful command from his superior commissioned officer, and two specifications of disobeying a lawful order from his superior NCO.

5.  On 1 November 1979, he consulted with legal counsel and he voluntarily 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.  In doing so, he admitted guilt to the offenses charged.  He acknowledged he understood he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration if a UOTHC discharge was issued to him.  He submitted statements in his own behalf.  He stated his stay in the U.S. Army was restive, non-motivational, and inadaptable.  Although he respected military life, his job status, and his superiors, but he couldn't live military life on a full-time basis and he wasn't Army material.  

6.  2 November 1979, his company commander recommended approval with issuance of a UOTHC discharge.  

7.  On 9 November 1979, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service – in lieu of trial by court-martial with a UOTHC discharge.

8.  On 29 November 1979, he was discharged with a UOTHC discharge after completing 1 year, 10 months, and 13 days of creditable active service.

9.  On 25 May 1982, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.

10.  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, a UOTHC discharge is normally considered appropriate.

	a.  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.

	b.  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 voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of trial by court-martial was administratively correct and in conformance with applicable regulations.  His service record does not indicate the request was made under coercion or duress.

2.  The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.

3.  The evidence of record shows he was charged with failing to go at the time prescribed to his appointed place of duty, disobeying a lawful command from his superior commissioned officer, and two specifications of disobeying a lawful order from his superior NCO.

4.  A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10.  The evidence of record further does not indicate the actions taken in his case were in error or unjust.  It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge, and the applicant provides insufficient evidence/argument why it should be upgraded now.

5.  In view of the foregoing, there is an insufficient evidentiary 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)                                         AR20130014215





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ABCMR Record of Proceedings (cont)                                         AR20130014215



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