IN THE CASE OF:	  

		BOARD DATE:	  28 August 2014

		DOCKET NUMBER:  AR20140000475 


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 (UOTHC) discharge.

2.  The applicant states it has been over 20 years since his discharge.  Even though his time was cut short, he would like to be recognized as a veteran.

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 16 August 1983, the applicant enlisted in the Regular Army.  He did not complete initial entry training.
3.  On 6 March 1984, court-martial charges were preferred against him for stealing a check, stealing gasoline, falsely and unlawfully making a check, and unlawfully uttering a check.

4.  On 9 March 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 Uniform Code of Military Justice (UCMJ), of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

5.  Subsequent to receiving this legal 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 acknowledged 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 he understood the elements of the offense charged and he was guilty of the charge against him. 

	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 due to the issuance of a UOTHC discharge.

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

6.  On 12 March 1984, his commander recommended the applicant 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.

7.  On 13 March 1984, the separation authority approved his request to be discharged for the good of the service.

8.  On 27 March 1984, he was discharged accordingly.  The DD Form 214 he was issued 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 7 months and 12 days of total creditable active military service.

9.  On 23 December 1986, the Army Discharge Review Board denied the applicant's request to upgrade his UOTHC to a general discharge.

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

	a.  Chapter 10 of the 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 UOTHC discharge 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.

DISCUSSION AND CONCLUSIONS:

1.  The evidence does not support his request that his discharge be upgraded.

2.  Court-martial charges were preferred against him for stealing a check, stealing gasoline, falsely and unlawfully making a check, and unlawfully uttering a check, offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  

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

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

5.  The ABCMR does not grant requests for upgrade of discharges solely for the purpose of an applicant to gain "veteran" status or based on the passage of time.

6.  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)                                         AR20140000475



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140000475



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1