BOARD DATE:	  25 September 2014

		DOCKET NUMBER:  AR20140003299 


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.  He states he was administratively discharged for conduct triable by court-martial.  He admitted guilt for his release.  He states, in effect, that he believes that his discharge was to have become a general discharge 6 months after his release.

3.  He provides his DD Form 214 (Certificate of Release or Discharge 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 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 18 July 1979, the applicant enlisted in the Regular Army.  After completing initial entry training, he was awarded military occupational specialty 63B (Power Generator and Light Wheeled Vehicle Mechanic).  

3.  A review of his record shows that, on an unknown date, he was charged with:

* two specifications of disobeying a lawful command from a superior commissioned officer
* disobeying a lawful order from a superior noncommissioned officer
* wrongfully appropriating a truck wrecker
* wrongfully communicating a threat

4.  On 4 December 1981, he consulted with counsel who advised him of the basis for his contemplated trial by court-martial and the maximum permissible punishment authorized under the Uniform Code of Military Justice (UCMJ), of the possible effects of an under other than honorable discharge, and of the procedures and rights available to him.

5.  After consulting with 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 Separations – Enlisted Personnel), chapter 10.

	a.  He acknowledged that:

* he could request discharge for the good of the service because charges had been preferred against him under the UCMJ that authorized the imposition of a bad conduct or dishonorable discharge
* he was guilty of the charges against him or of lesser-included offenses therein contained that also authorized the imposition of a bad conduct or dishonorable discharge
* under no circumstances did he desire further rehabilitation for he had no desire to perform further military service
* he understood he could be discharged under other than honorable conditions and furnished an Under Other than Honorable Discharge Certificate
* as a result of such a discharge, he would be deprived of many or all Army benefits and might be ineligible for many or all benefits administered by the Veterans Administration
* he could be deprived of his rights and benefits as a veteran under Federal and State laws
* he could expect to encounter substantial prejudice in civilian life because of an under other than honorable conditions discharge

	b.  He indicated he would not submit a statement in his own behalf.

6.  The separation authority approved the applicant's request for discharge for the good of the service and directed his discharge under other than honorable conditions.  On 21 January 1982, he was discharged in accordance with the separation authority's decision.  His DD Form 214 shows he completed 2 years, 6 months, and 4 days of net active service.

7.  On 27 April 1983, The Adjutant General informed the applicant that his request for a change in the type and nature of his discharge had been denied by the Army Discharge Review Board.

8.  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 Army does not have nor has it ever had a policy of automatically upgrading discharges based on the passage of time.  Every case is individually decided based upon its merits when an applicant requests a change in his or her discharge.

2.  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's records show he was charged with multiple offenses for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.  All requirements of law and regulation were met and his rights were fully protected throughout his discharge process.

3.  In his request for discharge, he admitted he was guilty of an offense that authorized the imposition of a bad conduct or dishonorable discharge.  Based on his admission of guilt, his service was clearly unsatisfactory.  Therefore, there is an insufficient basis upon which to grant the requested relief.

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)                                         AR20140003299





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ABCMR Record of Proceedings (cont)                                         AR20140003299



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