BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140002170 


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 to a general discharge.

2.  The applicant states he was told that he could either accept a UOTHC discharge or face a court-martial because he missed formation.  The Army attorney assured him the discharge would be changed to a general discharge after so many days.  This change was never made.  He now requests the Board to make the change.  He is a citizen and has been of good character since his discharge.  He requests that he be given the benefit of the doubt and that the Board grant his humble request.

3.  The applicant provides a copy of his DD Form 214 (Report of Separation 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 provide in the statute of limitations, the ABCMR has elected to conduct a substantive review of the cases 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 sufficient bases to waive the statute of limitations.

2.  On 30 July 1976, the applicant enlisted in the Regular Army and he held military occupational specialty 11E (Armor Crewman).  He was advanced to pay grade E-3 on 7 November 1977.

3.  He accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), on/for:

* 25 January 1978 - failing to go to his appointed place of duty on 11 and 24 January 1978 and willfully disobeying a lawful order from a commissioned officer on 24 January 1978
* 12 April 1978 – failing to go to his appointed place of duty on 21 and 22 March 1978

4.  A DD Form 458 (Charge Sheet) is not available for review with this case.  However, the available record indicates court-martial charges were preferred against the applicant for violating one or more of the following Articles of the UCMJ:  Article 86 (Absent without leave), Article 89 (Disrespect toward a commissioned officer), Article 90 (Assaulting or willfully disobeying a commissioned officer), and/or Article 91 (Insubordinate conduct).

5.  On 15 May 1978, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he understood he could be furnished an Under Other Than Honorable Conditions Discharge Certificate and the results of such a discharge.  He waived his rights and elected to submit a statement in his own behalf.    

6.  In his statement, dated 15 May 1978, the applicant indicated that he enlisted in the Army on 30 July 1976 for an opportunity and hoped to get a little experience behind him.  He was married and had two children.  His marriage was going really well, but he was afraid that if he didn't get out of the military his marriage would "fall," particularly if he was confined for this offense.  He had a boy who was 2 and one half years of age and a newborn baby.  He did not want them to suffer for a mistake that he had made.  He could get a job back in Indiana or with his father-in-law in El Paso, Texas, if necessary.  He was sorry for what happened and felt it could have been avoided if treated at the proper time and place.

7.  On 17 May 1978, the applicant's company commander recommended approval of the applicant's request.  The company commander stated the applicant was a rehabilitative transfer to that unit due to misconduct.  Prior to being read charges for a bad conduct discharge (BCD) the applicant was pending a chapter 14 discharge for misconduct.  The applicant's misconduct was totally unacceptable and he should be discharged as soon as possible.

8.  On 18 May 1978, the applicant's battalion commander recommended approval of the applicant's request.  The battalion commander stated the applicant's misconduct created extremely adverse conditions in Troop I and as a consequence he was transferred to Headquarters Troop, 3rd Squadron, 3rd Armored Cavalry Regiment.  Prior to being read charges for a special court-martial empowered to adjudge a BCD, the applicant's immediate commander had requested that action be taken to discharge the applicant from the service under the provisions of chapter 14, Army Regulation 635-200.  

9.  On 25 May 1978, the separation authority approved the applicant’s request for discharge and directed the issuance of an Under Other Than Honorable Conditions Discharge Certificate and reduction to pay grade E-1.  

10.  He was discharged accordingly on 6 June 1978.  He was credited with completing 1 year, 10 months, and 7 days of net active service.

11.  On 9 June 1980, the Army Discharge Review Board denied his request for an upgrade of his discharge.

12.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulation stated in:

   a.  Chapter 10 - a Soldier whose conduct rendered him triable by court-martial for an offense punishable by a bad conduct or dishonorable discharge could request a discharge for the good the service in lieu of a trial.  The regulation required that there have been no element of coercion involved in the submission of such a request and that the applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a UOTHC discharge, the adverse nature of such a discharge, and the possible consequences thereof.  The regulation required that the request be forwarded through channels to the general court-martial convening authority.  An Under Other Than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7b - a general discharge was a separation from the Army under honorable conditions.  When authorized, it was issued to a Soldier whose military record was satisfactory but not sufficiently meritorious to warrant an honorable discharge.

DISCUSSION AND CONCLUSIONS:

1.  The evidence shows the applicant was a rehabilitative transferee from another unit due to misconduct.  Prior to his request for a chapter 10 discharge he was pending a chapter 14 discharge for misconduct.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  He acknowledged the reason for his discharge and that he could be furnished a UOTHC discharge.  He waived his rights and submitted a statement in his own behalf.  The separation authority approved his request and he was discharged accordingly on 6 June 1978.  

2.  He provided no evidence or a convincing argument to show his discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge.  The evidence shows his misconduct diminished the quality of his service below that meriting a general discharge.

3.  Without evidence to the contrary, it appears his administrative discharge was accomplished in compliance with applicable regulations in effect at the time and with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

4.  Additionally, the Army does not now have, nor has it ever had, a policy of automatically upgrading an individual's discharge due to the passage of time.

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)                                         AR20140002170



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ABCMR Record of Proceedings (cont)                                         AR20140002170



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