IN THE CASE OF:
BOARD DATE: 4 September 2014
DOCKET NUMBER: AR20140001828
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 to a general discharge.
2. The applicant states, in effect, he was young, under a lot of stress, and thought he was doing the right thing for his wife and children. His wife couldn't adapt to Germany and his marriage subsequently ended in divorce due to his anger for getting kicked out of the Army. An upgrade of his discharge would bring him closure and take away the hurt and shame.
3. The applicant provides no additional 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. The applicant enlisted in the Regular Army on 23 June 1980 at the age of 19 years, 1 month, and 12 days.
3. The available evidence shows charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) on 13 August 1981 for:
* Operating a privately owned vehicle without a valid U.S. Army Europe operator's license
* Operating a motor vehicle not registered by competent authority
* Willfully damaging military property
* Operating a passenger car while drunk
* Being disorderly in a public place
4. On 8 September 1981, the applicant consulted with legal counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge under other than honorable conditions, and the procedures and rights available to him. Subsequent to receiving this legal counsel, the applicant 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 SeparationsEnlisted Personnel), chapter 10.
5. The applicant indicated he understood that by requesting a discharge he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge. He further acknowledged he understood that if his discharge request were approved, he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws. He elected not to submit a statement in his own behalf.
6. On 1 October 1981, the separation authority approved the applicant's request for discharge for the good of the service in lieu of trial by court-martial under the provisions of Army Regulation 635-200, chapter 10, and directed the applicant's reduction to the lowest enlisted grade and the issuance of a discharge under other than honorable conditions. On 21 October 1981, the applicant was discharged accordingly.
7. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was discharged under other than honorable conditions for the good of the service in lieu of trial by court-martial. He completed 1 year, 3 months and 10 days of creditable active service with lost time for the period 15 May through 3 June 1981.
8. On 28 July 1986, the Army Discharge Review Board denied his petition for an upgrade of his discharge.
9. Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.
a. 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 discharge under other than honorable conditions is normally considered appropriate.
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 contention that his under other than honorable conditions discharge should be upgraded to a general discharge was carefully considered and determined to lack merit.
2. Records show the applicant was over 19 years of age at the time of his offenses. There is no evidence indicating the applicant was less mature than other Soldiers of the same age who successfully completed their military service.
3. The applicant's records show 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. The evidence shows the applicant was properly and equitably discharged in accordance with the regulations in effect at the time. There is no evidence of procedural errors which would have jeopardized his rights. All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. Further, the applicant's discharge accurately reflects his overall record of service.
5. Based on the applicant's record of indiscipline his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel. His misconduct rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge to general under honorable conditions.
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) AR20140001828
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ABCMR Record of Proceedings (cont) AR20140001828
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