IN THE CASE OF:	  

		BOARD DATE:	  15 January 2015

		DOCKET NUMBER:  AR20140008105 


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, in effect, he is a very good Christian who attends church regularly and is a very good citizen in his community.  He states noncommissioned officers attacked him physically and mentally to include his character.  They told his commanding officer, first sergeant, and military police that he was having a nervous breakdown and should be discharged under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Personnel), chapter 5.  Everything he attempted to do to correct the situation came back to the company and he was told that his commanding officer would handle it in house.  He finally decided the only option for him was to leave.  He was a good Soldier and he did not want to be told he was unfit to wear the uniform.  He wanted to defend his country and their actions were counter-productive for him.  If he could have gotten someone to hear him, he would have served his 25 years.

3.  The applicant provides a personal statement and three statements of support.

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 2 August 1978, the applicant enlisted in the Regular Army.  He completed training and was awarded military occupational specialty 64C (Motor Transport Operator).  The highest rank he held was specialist four/pay grade E-4.

3.  On 15 April 1981, he reenlisted for 3 years.

4.  He received nonjudicial punishment (NJP) under the provisions of Article 15, Uniform Code of Military Justice (UCMJ):

* on 23 October 1981, for failing to go at the time prescribed to his place of duty
* on 8 March 1982, for being absent without leave (AWOL) from on or about 5 to 31 January 1982
* on 23 July 1982, for wrongfully appropriating an M915 tractor with M872 trailer

5.  On 19 October 1982, court-martial charges were preferred against him for being AWOL from on or about 2 September to 6 October 1982.

6.  On 20 October 1982, he consulted with legal counsel and was advised of the basis for his contemplated trial by court-martial and the maximum possible punishment under the UCMJ, of the possible effects of a UOTHC discharge, and of the procedures and rights available to him.

7.  Subsequent to receiving this legal counsel, he voluntarily requested discharge for the good of the service under the provisions of Army Regulation 635-200, chapter 10.

	a.  He acknowledged he understood he could request discharge for the good of the service because charges had been preferred against him under the UCMJ which authorized the imposition of a bad conduct or dishonorable discharge.  

	b.  He stated he was making the request of his own free will, he had not been subjected to any coercion whatsoever by any person, and he had been advised of the implications attached to his request.
   c.  He acknowledged that he understood the elements of the offense charged and he was guilty of the charge against him. 

	d.  He stated he did not desire further rehabilitation because he had no desire to perform further military service.

	e.  He acknowledged he understood that, if his request for discharge was accepted, he could be furnished a UOTHC discharge.  He acknowledged he had been advised of and understood the possible effects of a UOTHC discharge and that, as the result of the issuance of such a discharge he could be ineligible for many or all benefits administered by the Veterans Administration, and that he could be deprived of his rights and benefits as a veteran under both Federal and State laws.  He acknowledged he understood he could expect to encounter substantial prejudice in civilian life due to the issuance of a UOTHC discharge.

	f.  He waived his rights and elected to provide a statement in his own behalf.  This statement is not available for review.  

8.  On 27 October 1982, his commander recommended the applicant be discharged under the provisions of Army Regulation 635-200, chapter 10, for the good of the service and that he be given a UOTHC discharge.

9.  On 25 January 1983, the separation authority approved his request to be discharged for the good of the service.

10.  On 8 February 1983, he was discharged accordingly.  The DD Form 214 he was issued shows he was discharged under the provisions of Army Regulation
635-200, chapter 10, for the good of the service-in lieu of court-martial, and his service was characterized as UOTHC.  It also shows he completed 4 years, 4 months, and 7 days of total creditable active military service.

11.  He provides three letters of support.

	a.  His sister contends that if he had received the guidance and mentoring that he needed at his young age he could have been a career Soldier.

	b.  A missionary attests that he is now helpful and a blessing to his church, family, friends, community, and others.

	c.  His pastor states he is faithful and kindhearted and gets along well with everyone.

12.  There is no indication the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within that board's 15-year statute of limitations.

13.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of the regulation in effect at the time provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request could be submitted at any time after charges had been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a UOTHC discharge was normally considered appropriate. 

	b.  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 contentions and letters of support were carefully considered.  The evidence does not support his request that his discharge should be upgraded.

2.  He received NJP on three occasions.  Court-martial charges were preferred against him for being AWOL, an offense for which he could have been tried by court-martial and punished with a punitive discharge under the UCMJ.

3.  Discharges under the provisions of Army Regulation 635-200, chapter 10, are voluntary requests for discharge in lieu of trial by court-martial.  He voluntarily, willingly, and in writing requested discharge from the Army in lieu of trial by court-martial.  In doing so, he waived his opportunity to appear before a court-martial.  He also admitted he was guilty of the offenses for which he was charged.  All requirements of law and regulation were met, and his rights were fully protected throughout the separation process.

4.  Based on this record of indiscipline, his service clearly did not meet the standards of acceptable conduct and performance of duty for Army personnel.

5.  In view of the foregoing, there is no basis for granting the applicant a general discharge.


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)                                         AR20140008105



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ABCMR Record of Proceedings (cont)                                         AR20140008105



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