IN THE CASE OF:	  

		BOARD DATE:	  17 September 2013

		DOCKET NUMBER:  AR20130003749 


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 under other than honorable conditions discharge (UOTHC) to an honorable discharge (HD).

2.  The applicant states, in effect, he was forced to take this action without an attorney.  He had no understanding of the type of discharge nor was he given counseling.  Additionally, he was being discriminated against.
 
3.  The applicant provides his DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge).

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 4 June 1971.  His record shows he completed basic combat and advanced individual training and was awarded military occupational specialty 76W (Petroleum Specialist). 

3.  The applicant’s disciplinary history includes his acceptance of non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on:

* 8 October 1971 for being absent from his unit
* 11 January 1972 for being absent from his unit
* 4 February 1972 for being absent from his unit

4.  The applicant’s DA Form 20 (Enlisted Qualification Record) shows he was absent without leave (AWOL) for the following periods:

* 11 January through 19 January 1972  
* 4 February through 7 February 1972

5.  On 23 March 1972, charges were preferred against the applicant for being wrongfully and unlawfully enticing two specialist fours (SP4) to engage in sexual intercourse for hire and reward with persons to be directed to them by the applicant and resisting being lawfully apprehended by a Armed Force Policeman.

6.  On 28 March 1972, the applicant consulted with legal counsel and after being advised of the basis of the contemplated trial by court-martial and the maximum permissible punishment under the UCMJ, of the possible effects of a discharge UOTHC, and of the rights and procedures available to him, he voluntarily requested discharge for the good of the service - in lieu of trial by court-martial.

7.  On 13 April 1972, the separation authority approved the applicant's request for discharge and directed that he receive a discharge UOTHC.  On 17 April 1972, the applicant was discharged accordingly.  He completed 10 months and 
1 day of creditable active service with 13 days of lost time.

8.  On 23 June 1980, the applicant was informed his application to the Army Discharge Review Board for an upgrade of his discharge was denied.  

9.  Army Regulation 635-200 (Personnel Separations) 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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

10.  Army Regulation 635-200, 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.

11.  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 discharge should be upgraded was carefully considered and it was determined there is insufficient evidence to support his request.

2.  The applicant states he was being discriminated against.  There is no evidence in the available record which shows that the applicant was discriminated by the military personnel or that he sought assistance for any discrimination by military personnel.

3.  The applicant's record shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  

4.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process.  The evident of record shows he consulted with counsel.  Further, the applicant's discharge accurately reflects his overall record of service.

5.  The applicant's record of service shows he was AWOL for 13 days in addition to the misconduct that led to his discharge.  Based on this record of indiscipline, the applicant's service did not meet the standard of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, the applicant is not entitled to an upgrade of his UOTHC 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)                                         AR20130003749





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ABCMR Record of Proceedings (cont)                                         AR20130003749



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