IN THE CASE OF:	  

		BOARD DATE:	  23 September 2014

		DOCKET NUMBER:  AR20140003100


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 correction of his military records to upgrade his under other than honorable conditions (UOTHC) discharge to honorable.
   
2.  The applicant states he believed at the time of his discharge that he was a good Soldier who had a substance abuse problem.  Since his discharge he has made successful efforts to gain and maintain sobriety.  He was young and made a mistake.  He has worked hard and has learned to take responsibility for his actions.

3.  The applicant provided no additional documents.  His application stated “see attached”; however, nothing was received.

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 28 October 1975, the applicant, at the age of 22 years, enlisted in the Regular Army.  He completed his initial training as an unit supply specialist.

3.  On 20 March 1976, the applicant was assigned to the 2nd Battalion, 28th Infantry Regiment.

4.  The applicant accepted the following nonjudicial punishments (NJP):

	a.  19 May 1976 for: failure to go to his appointed place of duty on 11 May 1976;

	b.  18 July 1977: for being absent without leave (AWOL) on 29 June 1977;

	c.  3 March 1978: for being AWOL on 3 March 1978; and

	d.  4 January 1979: for being disrespectful in language toward a commissioned officer.

5.  Charges were preferred against him under the Uniform Code of Military Justice (UCMJ) for:

	a.  violation of Article 125 for sodomy on or about 22 September 1978; and

	b.  violation of Article 134 for possession of heroin on 22 September 1978.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial.  He acknowledged he had been advised of and understood his rights under the UCMJ, and that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge.

7.  In his request for discharge, the applicant indicated he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and that he could be deprived of his rights and benefits as a veteran under both Federal and State law.

8.  On 25 February 1979, the separation authority approved the applicant’s request for discharge and directed the applicant be issued an Undesirable Discharge Certificate.  On 21 March 1979, the applicant was discharged accordingly.  He had completed 3 years, 4 months, and 24 days of creditable active duty service.

9.  On 17 December 1980, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

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

	a.   Chapter 10 provides, in pertinent part, 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 UOTHC is normally considered appropriate.  At the time, an Undesirable Discharge Certificate was normally issued.

	b.  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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 contends that his UOTHC discharge should be upgraded because he was young at the time, but is now older and more responsible.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's contention that he was young and immature at the time is not sufficiently mitigating to warrant relief.  The applicant was 22 years of age and had satisfactorily completed training.  His satisfactory performance demonstrates his capacity to serve and shows that he was neither too young nor immature.

4.  The applicant’s claim of now being more responsible is noted.  However, it does not sufficiently mitigate his repeated acts of indiscipline during his military service.

5.  In view of the foregoing, there is no basis for granting the applicant an honorable 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)                                         AR20110020309



3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003100



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1