IN THE CASE OF:	  

		BOARD DATE:	  13 November 2014

		DOCKET NUMBER:  AR20140006574 


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 (UOTHC) discharge to a general discharge.

2.  The applicant states:

   a.  In effect, he believes the records to be in error or unjust because he has had this cloud over his head for nearly 50 years.  This has been a life sentence.  He was 19 years when he enlisted in the Army and he was 23 years of age when he was discharged.  This was 43 years ago.  

   b.  Even though he had a miserable military career, not everyone is cut-out to be an apprentice.  He did and it took 4 years, from 1977 to 1981, but he did it and he became a journeyman.  Due to the nation's economy his career ended in 2009.  He has been a good and voting citizen and he is now 66 years of age. 

3.  The applicant provides a completed DD Form 293 (Application for the Review of Discharge from the Armed Forces of the United States) and copies of the following:

* DD Form 214 (Report of Separation from Active Duty)
* International Union of Operating Engineers Membership Identification Card



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 7 September 1966.  At the time of his enlistment, he was 19 years and 22 days of age.  He was awarded military occupational specialty 11B (light weapons infantryman).  He was advanced to pay grade E-2 on 6 January 1967.

3.  On 4 April 1967, he was convicted by a summary court-martial of one specification of being absent without leave (AWOL) from 4 January to 21 March 1967.  He was sentenced to a forfeiture $60.00 pay for one month and 45 days of hard labor without confinement.  On 5 April 1967, the convening authority approved the sentence and ordered it executed.

4.  On 13 June 1967, he was convicted by a special court-martial of one specification each of being AWOL from 17 to 22 May 1967 and possessing 27.94 grams of marijuana.  He was sentenced to confinement at hard labor, a forfeiture of $37.00 pay per month for six months, and a reduction to pay grade E-1.  On the same day, the convening authority approved the sentence and ordered it executed.

5.  On 6 July 1967, the convening authority set aside the 13 June 1967 sentence of a forfeiture of $37.00 pay per month for six months as being excessive.

6.  On 31 July 1967, the convening authority suspended for six months the 13 June 1967 sentence of confinement at hard labor for six months conviction.

7.  On 7 November 1967, the convening authority vacated the suspended 



13 June 1967 sentence of confinement at hard labor for six months and ordered the sentence duly executed.

8.  On 14 December 1967, he was convicted by a special court-martial of one specification of being AWOL from 14 August to 6 November 1967.  He was sentenced to confinement at hard labor for six months and a forfeiture of $37.00 pay per month for six months.  On the same day, the convening authority approved the sentence and ordered it executed.

9.  On 14 June 1968, the convening authority remitted the unexecuted portion of the 13 June 1967 sentence.

10.  His record is void of the facts and circumstances surrounding his discharge; however, his records contain a DD Form 214 which shows he was discharged in pay grade E-1 on 4 June 1971, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10.  His service was characterized as UOTHC.  He was credited with completing 1 year, 7 months, and 22 days of net active service and had 2,045 days of time lost.

11.  On 2 August 1977, the Army Discharge Review Board denied his petition for an upgrade of his discharge.

12.  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 Soldier 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 3-7b - 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.


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 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 was 19 years and 22 days of age at the time of his enlistment and 19 years, 7 months, and 20 days of age at the time of his first court-martial.  There is no evidence he was any less mature than any other Soldier who completed their term of enlistment.

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

4.  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.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, there is no basis for granting him 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)                                         AR20140006574





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ABCMR Record of Proceedings (cont)                                         AR20140006574



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