IN THE CASE OF:	  

		BOARD DATE:	  14 October 2014

		DOCKET NUMBER:  AR20140003452 


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, correction of his military record to show his correct grade and an upgrade of his under other than honorable conditions (UOTHC) discharge to a general, under honorable conditions discharge (GD).

2.  The applicant states:

	a.  he was demoted to E-1; and

	b.  he was young and immature, he grew up without discipline, lived in the streets, and joined the Army to escape and learn some discipline.

3.  The applicant provides:

* DD Form 214 (Certificate of Release or Discharge from Active Duty)
* 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 on 23 January 1980.  His record shows he departed absent without leave (AWOL) during his initial entry training on or about 23 March 1980.

3.  His DA Form 2-1 (Personnel Qualification Record) shows in item 18 (Appointments and Reductions) that he entered active duty in the rank of private (PVT/E-1) on 23 January 1980.  There is no evidence in his record to show he was ever promoted beyond this rank and grade.

4.  On 25 July 1980, a DD Form 458 (Charge Sheet) was prepared preferring a court-martial charge against the applicant for being AWOL from on or about 23 March-4 July 1980.

5.  On 28 July 1980, the applicant acknowledged the charge preferred against him for violating Article 86 of the Uniform Code of Military Justice (UCMJ).  Having consulted with legal counsel and having been advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of a discharge UOTHC, and the procedures and rights available to him, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 10.

6.  In his request for discharge he acknowledged he understood he would be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration (VA), and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He also indicated he understood he could face substantial prejudice in civilian life because of a discharge UOTHC.  While he indicated he would submit a statement on his own behalf, no such statement is included in his military record.

7.  On 9 September 1980, after having considered the applicant's request, the separation authority approved his request and directed the issuance of a UOTHC Discharge Certificate under the provisions of Army Regulation 635-200, chapter 10.

8.  On 19 September 1980, the applicant was discharged accordingly in the rank of PVT/E-1.  His DD Form 214 shows he completed 3 months and 29 days of creditable active duty service and had 118 days of time lost.

9.  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.  

10.  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 a general discharge is authorized, a discharge UOTHC 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.

11.  Army Regulation 635-5 (Separation Documents) at the time prescribed the separation documents that were prepared for individuals upon retirement, discharge, or release from active military service or control of the Army.  It also establishes standardized policy for preparing and distributing the DD Form 214.  The regulation in effect at the time of the applicant’s discharge states that the grade held by the individual at the time of separation will be entered on the separation document.

DISCUSSION AND CONCLUSIONS:

1.  The applicant contends his record should be corrected to show his proper grade and his UOTHC discharge should be upgraded to a GD.  There is insufficient evidence to support this claim.

2.  The evidence of record contains no documents to show the applicant was ever promoted above the rank of PVT/E-1.  He held this rank at the time of his discharge and it is properly listed on his DD Form 214.  As a result, absent any evidence confirming he held a higher grade at the time of his discharge, there is an insufficient evidentiary basis to support granting this portion of the applicant's requested relief.

3.  The evidence of record also confirms that after completing only 2 months of initial entry training, the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge for being AWOL from 23 March to 3 July 1970, totaling 118 days.  After consulting with legal counsel, he voluntarily requested discharge in lieu of trial by court-martial.

4.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would have jeopardized his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.  His service did not support a general discharge at the time of his separation and it would not be appropriate to upgrade his discharge now.

5.  In view of the foregoing, there is no basis for granting the applicant's 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)                                         AR20140003452





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ABCMR Record of Proceedings (cont)                                         AR20140003452



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