IN THE CASE OF: 

		BOARD DATE:	    7 August 2014

		DOCKET NUMBER:  AR20130020941 


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 not properly counseled about his discharge
* even though a bad conduct discharge was authorized, under the circumstances the undesirable discharge was too harsh
* his record of promotion shows he was generally a good Soldier
* he was so close to finishing his tour that it was unfair to give him a bad discharge
* his record of nonjudicial punishment (NJP), periods of being absent without leave (AWOL), and/or periods of unexcused absence indicates only minor or isolated offenses
* racial discrimination, his use of alcohol, psychiatric problems, and certain other problems impaired his ability to serve
* the punishment he got was too severe compared to today's standard and it was much worse than most people got at the time for the same offense
* he tried to serve and wanted to, but just couldn't or wasn't able to
* his command abused its authority when it discharged him and decided to give him a bad discharge

3.  The applicant provides a DD Form 458 (Charge Sheet) and discharge-related memoranda.

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 26 May 1981, the applicant enlisted in the Regular Army.  The highest rank/grade he held was specialist four/E-4.

3.  He received NJP under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on the following occasions:

* on 9 December 1981, for willfully committing an assault, on or about            30 November 1981 
* on 12 February 1982, for being disrespectful in language toward a superior noncommissioned officer (NCO), on or about 7 February 1982
* on 8 June 1982 for being disrespectful in language toward a superior NCO and for disobeying a lawful order, both instances on or about 31 May 1982
* on 10 August 1982, for being incapacitated, and thereby incapable of properly performing his duties, on or about 8 August 1982 
* on 6 September 1983, for willfully disobeying the lawful order of a superior NCO, on or about 31 August 1983 

4.  On 24 September 1984, court-martial charges were preferred against him for being AWOL from on or about 1 April 1984 through on or about 18 September 1984.

5.  On 24 September 1984, he consulted with legal counsel and was advised 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.

6.  He was advised by his defense counsel that at the time the government had not received the necessary documentation and/or records with which to obtain a conviction by a court-martial.  This was merely due to the time required to request and mail the documents and records.  He was further advised by his defense counsel that he could not completely advise him without those records.  Nevertheless, knowing all that to be true, he waived all defenses that may have become known had his defense counsel been able to review his records.  

	a.  He knowingly, willingly, and voluntarily admitted he was AWOL from on or about 1 April 1984 through on or about 18 September 1984.

	b.  He acknowledged he was making that admission for administrative purposes only so he could process out of the Army and realized that in doing so he may be given a UOTHC discharge.

   c.  He further declared that his defense counsel had explained to him to his complete understanding and satisfaction all the legal and social ramifications of that type of discharge and what it would mean in the future. 

7.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial 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 against him or of a lesser included offense 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.

	f.  He waived his rights and elected not to provide a statement in his own behalf.  

8.  His chain of command recommended he be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and that he be given a UOTHC discharge.

9.  On 28 September 1984, the separation authority approved his request to be discharged for the good of the service.

10.  On 22 October 1984, he was discharged accordingly.  The DD Form 214 he was issued at that time shows he was discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service, and his service was characterized as UOTHC.  It also shows he completed 2 years, 11 months, and 10 days of total creditable active military service with time lost from 1 April 1984 to 17 September 1984.

11.  A review of the applicant's military medical record failed to reveal any mention of psychiatric problems.

12.  On 20 April 1988, the Army Discharge Review Board denied his request for an upgrade of his UOTHC discharge.

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

	a.  Chapter 10 of that regulation in effect at the time provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge UOTHC was 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.
   
14.  The Table of Maximum Punishments of the Manual for Courts-Martial, United States, 1969 (Revised edition), in effect at the time, shows the maximum punishment for being AWOL for more than 30 days is:

* dishonorable discharge
* forfeiture of all pay and allowances
* confinement not to exceed 1 year

DISCUSSION AND CONCLUSIONS:

1.  He contends his UOTHC discharge was excessive punishment; however, his discharge was not issued as a punishment.  He acknowledged in his request for discharge in lieu of trial by court-martial that he could be discharged UOTHC.  Had he been convicted by a court-martial, he could have been sentenced to confinement not to exceed 1 year, forfeiture of all pay and allowances, and given a dishonorable discharge.

2.  His contention that he was so close to finishing his tour that it was unfair to give him a bad discharge is contrary to his request for discharge, wherein he stated he had no desire to perform further military service.

3.  The applicant's other contentions are noted.  However, the evidence does not support his request that his discharge be upgraded.

4.  He received NJP on five occasions.  He was charged with being AWOL for a period exceeding 5 months, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  

5.  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.  He also admitted he was guilty of the offense for which he was charged.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

6.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  

7.  In view of the foregoing, there is no basis for granting the applicant an honorable discharge 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)                                         AR20130020941





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ABCMR Record of Proceedings (cont)                                         AR20130020941



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