BOARD DATE:	  7 October 2014

		DOCKET NUMBER:  AR20140003367 


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 to an honorable discharge and a personal appearance before the Board.

2.  The applicant states, in effect, he believes the records to be in error or unjust due to the injustice while in the service.

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.  The applicant enlisted in the Regular Army on 1 November 1973.  He completed basic combat and advanced individual training and was awarded military occupational specialty 64C (motor transport operator).  He was advanced to pay grade E-3 on 11 March 1974.

3.  On 22 April 1974, he accepted nonjudicial punishment (NJP) under Article 15, Uniform Code of Military Justice (UCMJ), for assaulting another Soldier by striking the Soldier with his hands and feet on 17 April 1974.  

4.  He served in Germany from 8 May 1974 through on or about 29 October 1974.

5.  On 7 September 1974, he accepted NJP under Article 15, UCMJ, for being disrespectful in language towards his superior noncommissioned officer (NCO) and willfully disobeying a lawful order from this NCO on 4 September 1974.

6.  His record is void of the facts and circumstances surrounding his discharge; however, his records contain the following:

   a.  A DA Form 2496 (Disposition Form), dated 18 October 1974, which shows the Staff Judge Advocate found no legal objection to approving the applicant's discharge with award of an Undesirable Discharge Certificate pursuant to chapter 10, Army Regulation 635-200 (Personnel Separations, Enlisted Separations).  He stated the proceeding was based on evidence of drugs obtained from/or as a result of a "drug inspection."

   b.  A DD Form 214 which shows he was discharged in pay grade E-1 on 29 October 1974, under the provisions of Army Regulation 635-200, chapter 10.  His service was characterized as under other than honorable conditions (UOTHC).  He was credited with completing 11 months and 29 days of net active service.  

7.  On 12 March 1984, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

8.  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 discharge UOTHC, 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.  A UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.

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

9.  Army Regulation 15-185, paragraph 2-11, states applicants do not have a right to a hearing before the ABCMR.  The Director or the ABCMR may grant a formal hearing (personal appearance) whenever justice requires.

DISCUSSION AND CONCLUSIONS:

1.  The applicant's record is void of the facts and circumstances surrounding his discharge; however, it appears after charges were preferred against him and after consulting with counsel, he voluntarily, willingly, and in writing requested discharge from the Army.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  

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 during his periods of service diminished the quality of his service below that meriting a general or fully honorable discharge.

3.  Without evidence to the contrary, his administrative separation was accomplished in compliance with applicable regulations with no procedural errors which would tend to jeopardize his rights.  It is presumed he was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him the requested relief.

4.  His request for a personal appearance hearing was also carefully considered. 
However, an applicant is not entitled to a hearing before the Board.  Hearings may be authorized by a panel of the Board or by the Director of the ABCMR.  In this case, the evidence of record and the new argument provided by the applicant are sufficient to render a fair and equitable decision at this time.  As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice 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)                                         AR20140003367





3


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1

ABCMR Record of Proceedings (cont)                                         AR20140003367



2


ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

 RECORD OF PROCEEDINGS


1