IN THE CASE OF:	   

		BOARD DATE:	  1 July 2014

		DOCKET NUMBER:  AR20130019427 


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 when he signed the papers.  He was young at the time.  He is trying to get a job at the Department of Veterans Affairs (VA).

3.  The applicant 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.  On 29 April 1980, the applicant enlisted in the Regular Army at the age of 20.  The highest rank he held was private two/pay grade E-2.

3.  On 21 January 1981, pursuant to his plea of guilty, he was convicted by a special court-martial of stealing stereo equipment with a total value of about $805.00.

4.  On 30 November 1981, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from 16 October 1981 to 20 November 1981.

5.  On 2 December 1981, he consulted with legal counsel who advised him of the nature of his rights under the Uniform Code of Military Justice (UCMJ), elements of the offenses with which he was charged and any relevant lesser included offense(s), possible defenses which appeared available at the time, and the maximum permissible punishment under the UCMJ.
  
6.  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 of AWOL 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 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 VA, 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.  

   f.  He elected to submit a statement on his own behalf.  He stated he wanted out of the Army because it wasn't working out.  He stated he was court-martialed in January 1981 and sentenced to 30 days of confinement at hard labor and then went through the retraining brigade.  He thought he might give it another try and that still didn't work out.

7.  On 15 December 1981, the separation authority approved his request to be discharged for the good of the service.  He directed that the applicant be furnished a UOTHC Discharge Certificate.

8.  On 10 February 1982, 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 issued at that time shows his service was characterized as UOTHC.  It also shows he completed 1 year, 8 months, and 8 days of creditable active military service with 35 days of time lost time.

9.  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.

10.  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.  His age at time of enlistment was noted.  However, many Soldiers enlisted at a young age and went on to complete their enlistments and receive honorable discharges.  Therefore, his age cannot be used as a reason to change a properly-issued discharge.

2.  His contention that he was told he would be given a general discharge when he signed the paperwork is not supported by the available evidence.

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 was convicted by a special court-martial of stealing stereo equipment and charges were preferred against him 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.

5.  The ABCMR doesn't grant discharge upgrades to help an applicant improve his or her employment opportunities.  Each case is individually decided based upon its merits when an applicant requests a change in his or her 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)                                         AR20130019427



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20130019427



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1