IN THE CASE OF:  	  

		BOARD DATE:  13 November 2014	  

		DOCKET NUMBER:  AR20140005862 


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 undesirable discharge to general under honorable conditions.

2.  The applicant states he wants his discharge upgraded based on a plea for clemency.  Due to severe emotional distress, mixed with heavy drug use, he was unable to adjust to military life.  He contends that his records only show the outcome of his inability to adjust.  The abuse he suffered during his childhood helped him to despise authority and influenced him to use drugs and alcohol to deaden the pain of an emotionally abusive past.  He is now almost 60 years of age and his less than honorable conditions discharge is still affecting him negatively.  It would greatly help him educationally, financially, and emotionally if his discharge was upgraded.  He has been incarcerated for over 17 years and a positive view from his past would aid him with finding a job and attending college.

3.  The applicant provides no additional documentation.

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 23 January 1973, the applicant enlisted in the Regular Army.  He completed his initial training as a light weapons infantryman.

3.  The applicant accepted the following nonjudicial punishments (NJPs):

* 16 August 1974: for willfully disobeying a lawful order and failing to go to his appointed place of duty
* 10 December 1974: for willfully disobeying a lawful order
* 22 January 1975: for failing to go to his appointed place of duty
* 11 March 1975: for failing to go to his appointed place of duty

4.  On or about 27 March 1975, charges were preferred against the applicant under the Uniform Code of Military Justice (UCMJ) for violation of:

	a.  Article 86 for absenting himself without authority from his unit from on or about 21 to 25 March 1975;

	b.  Article 90 for disobeying a lawful order from his superior commissioned officer (two specifications); and

	c.  Article 91 for assault on his superior noncommissioned officer by trying to hit him with his gear and for being disrespectful in language towards his superior noncommissioned officer.

5.  On 29 April 1975, the applicant consulted with legal 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 a discharge under other than honorable conditions (UOTHC), and the procedures and rights available to him.

6.  After consulting with counsel and being advised of his rights and options, the applicant submitted a formal request for 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.  He acknowledged he had been advised of and understood his rights under the UCMJ and that he could receive a discharge UOTHC which would deprive him of many or all of his benefits as a veteran.  He acknowledged that he could expect to experience substantial prejudice in civilian life if he received a discharge UOTHC.
7.  The applicant indicated he understood that by requesting discharge, he was admitting guilt to the charge against him or to a lesser-included offense that also authorized the imposition of a bad conduct or dishonorable discharge.  He further acknowledged he understood that if his discharge request were approved, 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 27 May 1975, the separation authority approved the applicant's request for discharge and directed the issuance of a DD Form 258A (Undesirable Discharge Certificate).  On 9 June 1975, the applicant was discharged accordingly.  He completed 2 years and 4 months of creditable active duty service and accrued 17 days of lost time.

9.  On 15 May 1979, the Army Discharge Review Board (ADRB) considered the applicant's request for an upgrade of his discharge.  The ADRB determined that his discharge was proper and equitable and denied his request.

10.  Under the UCMJ, the maximum punishment allowed for violation of Article 90, for willfully disobeying a lawful order from a commissioned officer, is a punitive discharge and confinement for 5 years.

11.  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 at any time after the charges have been preferred.  A discharge UOTHC is normally considered appropriate.

	b.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member’s service generally has met the standards of acceptable conduct and performance of duty for Army personnel (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.

	c.  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 contends that his undesirable discharge should be upgraded to general under honorable conditions because he was emotionally distressed and used drugs and alcohol wile in the military.  Furthermore, he contends that his discharge is still affecting him educationally, financially, and emotionally; and will hinder his ability to obtain employment and enter college.

2.  The applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.  The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.

3.  The applicant's desire to obtain employment and enter college is noted.  However, these ambitions do not provide a justifiable basis to upgrade his discharge.

4.  The applicant has not provided sufficiently convincing evidence or argument to mitigate the misconduct that led to his discharge.

5.  There is no error or injustice in this case.

6.  In view of the above, the applicant's request should be denied.

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)                                         AR20140005862





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ABCMR Record of Proceedings (cont)                                         AR20140005862



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