IN THE CASE OF:	  

		BOARD DATE:	  24 March 2015

		DOCKET NUMBER:  AR20140012849 


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, in effect, an upgrade of his under other than honorable conditions (UOTHC) discharge to an honorable discharge.

2.  The applicant states the circumstances and facts did not justify a less than honorable discharge.  More than 36 years have elapsed since his discharge.  Due to his less than honorable discharge he has incurred insurmountable hardships.

3.  The applicant provides a copy of his birth certificate.

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 U.S. Army Reserve (USAR), in pay grade E-1, on 24 July 1975.  He entered active duty for training (ADT) on 28 December 1975.  He completed training and was awarded military occupational specialty 76D (materiel supplyman).  He was honorably released from ADT on 14 May 1976 and he was transferred to the USAR.  

3.  He was involuntarily ordered to AD and entered AD on 25 March 1977 as a result of failure to attend drills and annual training.  On 11 April 1977, he was assigned to Germany. 

4.  On 10 November 1977, a DD Form 458 (Charge Sheet) was completed by the Commander, Company B, 317th Engineer Battalion.  The applicant was charged with one specification each of intent to commit murder and assault upon a Soldier by choking him with a means likely to produce grievous bodily harm and violating a lawful general regulation by possessing one gram of amphetamine.

5.  A Form 113-7-R (Alcohol and Drug Abuse Prevention and Control Program Progress Report) shows on 17 November 1977 he was referred to the Community Drug and Alcohol Assistance Center.  He received counseling from 29 November 1977 through 11 January 1978.  This form indicates he was unwilling to change and maintained a desire to leave the military by any means.  It was recommended that he be declared a rehabilitation failure.

6.  On 22 November 1977, he accepted nonjudicial punishment under Article 15, Uniform Code of Military Justice (UCMJ), for wrongfully communicating a threat to injure a Soldier and failing to obey a lawful order.  

7.  On 1 December 1977, court-martial charges were preferred against the applicant.

8.  On or about 1 December 1977, after consulting with counsel, the applicant requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations – Enlisted Separations), chapter 10, for the good of the service – in lieu of trial by court-martial.  He acknowledged he could receive a UOTHC discharge.  He waived his rights and elected not to submit a statement in his own behalf.    

9.  On 27 February 1978, the applicant's company commander recommended approval of the applicant's request.  The company commander stated the applicant had been a disciplinary problem since his assignment to that unit.  


10.  On 28 February 1978, the separation authority approved the applicant’s request and directed the issuance of a UOTHC discharge.  

11.  On 12 March 1978, he departed Germany en route to the continental United States.  

12.  On 13 March 1978, he was discharged under the provisions of chapter 10, Army Regulation 635-200, for the good of the service – in lieu of trial by court-martial, with a UOTHC discharged, in pay grade E-1.  He was credited with completing 11 months and 19 days of active service this period.  

13.  On 21 September 1979, the Army Discharge Review Board denied his request for an upgrade of his discharge.

14.  On 12 December 1990, the ABCMR denied his request for an upgrade of his character of service to general, under honorable conditions.

15.  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 applicant was provided an opportunity to consult with counsel.  The Soldier was required to sign the request indicating he understood he could receive a discharge under other than honorable conditions, 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.  At the time an Under Other Than Honorable Conditions Discharge Certificate would normally be furnished to an individual who was discharged for the good of the service.

   b.  Paragraph 3-7a - an honorable discharge was a separation with honor.  The honorable characterization was appropriate when the quality of the member’s service generally had met the standards of acceptance conduct and performance of duty for Army personnel or was otherwise so meritorious that any other characterization would be inappropriate.





DISCUSSION AND CONCLUSIONS:

1.  The evidence shows after charges were preferred against the applicant for offenses punishable under the UCMJ, he requested a discharge under chapter 10.  The separation authority approved his request and he was discharged accordingly.

2.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu by court-martial.  He acknowledged the reason for his discharge and that he could be furnished an UOTHC discharge.  He waived his rights and elected not to submit a statement in his own behalf.  The separation authority approved his request and he was discharged on 13 March 1978.  

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 diminished the quality of his service below that meriting a fully honorable discharge.

4.  Without evidence to the contrary, it appears his administrative discharge was accomplished in compliance with applicable regulations in effect at the time and the current version, with no procedural errors which would have jeopardized his rights.  He was properly discharged in accordance with pertinent regulations with due process.  Therefore, he is not entitled to an upgrade of his discharge.

5.  The Army does not have nor has it ever had a policy that provides for the automatic upgrade of a discharge based on the passage of time.

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)                                         AR20140012849



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ABCMR Record of Proceedings (cont)                                         AR20140012849



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