IN THE CASE OF:	   

		BOARD DATE:	  9 December 2014

		DOCKET NUMBER:  AR20140007585 


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 that his discharge under other than honorable conditions (UOTHC) be upgraded.

2.  The applicant states, in effect, that it has been over 20 years since he was discharged and he now needs his discharge upgraded so that he can obtain much needed medical care.

3.  The applicant provides no additional documents.

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 15 January 1980 for a period of 3 years, training as a cannon crewman, and assignment to Fort Ord, California. He completed his one-station unit training at Fort Sill, Oklahoma and was transferred to Fort Ord for his first assignment on 28 April 1980.

3.  On 8 October 1980, nonjudicial punishment (NJP) was imposed against him for failing to go at the time prescribed to his appointed place of duty.

4.  On 24 December 1980, NJP was imposed against him for being absent without leave (AWOL) during the period 24 November to 23 December 1980.

5.  The applicant received assignment instructions transferring him to Germany with a reporting date of 24 July 1981.  He failed to report as ordered and he was reported as being AWOL.  He remained absent in a deserter status until he was returned to military control on 1 April 1983.

6.  The complete facts and circumstances surrounding the applicant's administrative discharge are not present in the available records.  However, the applicant's record contains a DD Form 214 (Armed Forces of the United States Report of Transfer or Discharge) that shows he was discharged under other than honorable conditions on 13 May 1983 under the provisions of Army Regulation 635-200 (Personnel Separations – Enlistee Personnel), chapter 10, for the good of the service – in lieu of trial by court-martial with a UOTHC discharge.  He served 1 year, 6 months, and 22 days of active service and had 644 days of lost time due to AWOL.

7.  There is no evidence in the available records to show that he applied to the Army Discharge Review Board for an upgrade of his discharge within that board’s 15-year statute of limitations.

8.  Army Regulation 635-200 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 charges have been preferred.  A condition of submitting such a request is that the individual concerned must indicate that he or she is submitting the request of his or her own free will without coercion from anyone and that he or she has been briefed and understands the consequences of such a request as well as the characterization of service he or she might receive.  A UOTHC discharge is normally considered appropriate.

9.  Army Regulation 635-200, 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, or is otherwise so meritorious that any other characterization would be clearly inappropriate.

10.  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 record is void of the complete facts and circumstances surrounding his discharge.  It appears he was charged with the commission of offense(s) punishable under the UCMJ with a punitive discharge.  Discharges under the provisions of Army Regulation 635-200, chapter 10 are voluntary requests for discharge in lieu of trial by court-martial.  The applicant is presumed to have voluntarily, willingly, and in writing, requested discharge from the Army in lieu of trial by court-martial.  In doing so, he admitted guilt and waived his opportunity to appear before a court-martial.  It is also presumed that all requirements of law and regulation were met, and the rights of the applicant were fully protected throughout the separation process.  Furthermore, in the absence of evidence showing otherwise, it must be presumed his discharge accurately reflects his overall record of service.

2.  After being afforded the opportunity to assert his innocence before a trial by court-martial, he voluntarily requested a discharge for the good of the service in hopes of avoiding a punitive discharge and having a felony conviction on his record.

3.  The applicant's contentions have been considered.  However, they are not sufficiently mitigating to warrant relief when compared to the extensive length of his absences, his overall record of service, and the absence of mitigating circumstances.  Additionally, discharges are not normally upgraded simply for the purpose of qualifying individuals for benefits.  As such, his service simply did not rise to the level of an honorable or a general discharge.

4.  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)                                         AR20140007585





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ABCMR Record of Proceedings (cont)                                         AR20140007585



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