IN THE CASE OF:  

		BOARD DATE:  30 September 2014	  

		DOCKET NUMBER:  AR20140003292 


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, in effect, an upgrade of his discharge under other than honorable conditions (UOTHC) to an honorable discharge (HD) and receipt of his final pay from military service.

2.  The applicant details his love for his wife and family, a summary of his military history, and states:

   a.  he was treated unfairly by his first sergeant (1SG) who promised to get him and did so by telling Captain (CPT) S______ he threatened to kill him;
   
   b.  CPT S______ informed him (the applicant) he was bringing him up on charges before a court-martial for threatening his life;
   
   c.  after a few weeks, he went to see a lawyer, serving in the rank of CPT, and told him his story;
   
   d.  the CPT advised him to take a general discharge and said that it would be upgraded to honorable if he kept his nose clean, which he did in order to go home to be with his wife and two babies;
   
   e.  his sentencing was delayed and one week after his court-martial, his lawyer, the CPT, informed him that while at a party with some other officers who were at his trial, he overheard heard them say the applicant was guilty and would be made an example of;
   
   f.  while out-processing from the Army, finance officials attempted to get him to take $1400.00, which he refused to accept knowing he was only entitled to $400.00 - $500.00; and
   
   g.  his final pay was then confiscated and he was given a telephone number to call which he did several times, but never received his pay.
   
3.  The applicant provides a self-authored statement.

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 (RA) on 10 November 1971.  His record shows he was trained in and awarded military occupational specialty 11E (Armor Crewman).

3.  His record shows he was administered non-judicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on
3 April 1974, for being derelict in the performance of his duty by failing to maintain proper security over the ammunition holding area. 

4.  On 28 August 1974, a special court-martial convicted the applicant of being disrespectful, disobeying a lawful command, assault, and threatening to injure his superior commissioned officer on 14 July 1974.

5.  On 5 November 1974, a DA Form 268 (Report of Suspension of Favorable Personnel Actions) was completed on the applicant.  It shows he was pending a court-martial for possession of drugs and, as a result, he elected to take a discharge under the provisions of chapter 10, Army Regulation 635-200 (Personnel Separations-Enlisted Personnel).

6.  His official military personnel file (OMPF) is void of a separation packet containing the specific facts and circumstances surrounding his separation processing.  However, the record does contain a DD Form 214 that shows he was discharged under the provisions of chapter 10, Army Regulation 635-200 (in lieu of trial by court-martial).

7.  The applicant's DD Form 214 also shows he was discharged on 25 November 1974, with a UOTHC characterization of service after completing 3 years and 
16 days of creditable active duty service.

8.  There is no indication that the applicant applied to the Army Discharge Review Board (ADRB) for an upgrade of his discharge within its 15-year statute of limitations.

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 discharge (HD) or GD is authorized, a UOTHC discharge is normally considered appropriate.

   b.  Paragraph 3-7b provides that a GD 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 HD.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his UOTHC discharge should be upgraded to an HD and that he should be given his final separation pay.  There is insufficient evidence to support this claim.

2.  The applicant's record is void of the specific facts and circumstances
surrounding his discharge.  It appears that he was charged with the commission of offense(s) 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.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he would have admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.

3.  Finally, the evidence of record fails to contain any documents to corroborate the applicant’s assertion that he did not receive his final pay upon his discharge from active duty.  Absent any evidence to confirm this portion of his claim, all matters surrounding his final pay are presumed to be correct.  Accordingly, there is no basis upon which to grant any relief in this case.

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)                                         AR20140003292





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ABCMR Record of Proceedings (cont)                                         AR20140003292



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