BOARD DATE:	  2 October 2014

		DOCKET NUMBER:  AR20140004024 


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.

2.  The applicant states he was informed by the Judge Advocate General (JAG) that his under other than honorable conditions discharge would automatically be upgraded to an under honorable conditions (general) discharge after six months.

3.  The applicant provides a copy of a DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States).

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 20 June 1977.  His records show he completed basic combat and advanced individual training and was awarded military occupational specialty 63H (Automotive Repairman).  The highest rank/grade he attained while serving on active duty was private first class/E-3.

3.  He received nonjudicial punishment (NJP) under the provisions of Article 15 of the Uniform Code of Military Justice (UCMJ) on 18 April 1980, for failing to go to his prescribed place of duty and for being absent without leave (AWOL) from 
15 April 1980 to 16 April 1980.

4.  He received NJP under the provisions of Article 15 of the UCMJ on 15 May 1980, for wrongfully using a JK Form 613 (Ration Control Card), wrongfully possessing marijuana, wrongfully using a DD Form 2A (Armed Forces Identification Card), wrongfully using another’s DD Form 345EK (Armed Forces Liberty Pass), and for being AWOL from 16 April 1980 to 15 May 1980.

5.  Charges were preferred against him on the following occasions:

     a.  On 20 May 1980, for being AWOL for the periods 15 April 1980 through    16 April 1980 and 2 May 1980 through 15 May 1980; for wrongfully using a       JK Form 613; for wrongfully possessing marijuana; for wrongfully using a DD Form 2A; and for wrongfully using a DD Form 345EK.
 
    b.  On 27 May 1980, for being absent without leave for the period 24 May 1980 through 27 May 1980.   

6.  On 27 May 1980, he consulted with counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and procedures and rights available to him.  Subsequent to receiving legal counsel, he voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

7.  In his request for discharge, he indicated he understood that by requesting discharge he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws.

8.  On 8 June 1980, the separation authority approved his request for discharge and directed his reduction to private/E-1 and the issuance of an under other than honorable conditions discharge.


9.  On 18 June 1980, he was discharged accordingly.  His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 2 years, 9 months, and 26 days of total creditable active military service, with 63 days of lost time due to being AWOL.

10.  On 23 August 1994, the Army Discharge Review Board denied his request for an upgrade of his discharge.

11.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) sets forth the basic authority for the separation of enlisted personnel.  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 at any time after the charges have been preferred.  A discharge under other than honorable conditions is normally considered appropriate.

12.  Army Regulation 635-200, 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's contention that his under other than honorable conditions discharge should be upgraded was carefully considered; however, it was found to be without merit.

2.  His record includes acceptance of NJP on at least two occasions.

3.  His record also shows he was charged with the commission of offenses punishable under the UCMJ with a punitive discharge and he voluntarily requested discharge under the provisions of Army Regulation 635-200, chapter 10, to avoid a trial by court-martial, which may have resulted in a felony conviction.

4.  All requirements of law and regulation were met and the his rights were fully protected throughout the separation process.  Further, his discharge accurately reflects his overall record of service.

5.  Based on his record of indiscipline, including being AWOL for 63 days, marijuana use, and intent to deceive, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.  This misconduct rendered his service unsatisfactory.  Therefore, he is not entitled to the relief requested.

6. The U.S. Army has never had a policy where a discharge was automatically upgraded.  Every case is individually decided based upon its merits when an applicant requests a change in his or hers discharge.  The ABCMR will warrant any changes if it is determined that the characterization of service or the reason for discharge were both improper and inequitable.

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)                                         AR20110023598



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ABCMR Record of Proceedings (cont)                                         AR20140004024



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