IN THE CASE OF:	  

		BOARD DATE:	  28 April 2015

		DOCKET NUMBER:  AR20140014678 


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, upgrade of his under other than honorable conditions (UOTHC) discharge. 

2.  The applicant states he was misinformed and lied to by his recruiter.  He was told he would remain stateside but then was sent to Germany.  He was told he could change his military occupational specialty (MOS), but that wasn't the truth either.  He was told he would be separated with an honorable discharge.  He did not receive any benefits as a veteran.  He is a law abiding citizen and, had he known he would receive an unfavorable discharge, he would have remained in the Army.

3.  The applicant provides no documents in support of his request.

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 for a training of choice option for guaranteed training in an infantry MOS.  He entered active duty on 2 August 1977, completed training in MOS 11B as an infantryman, and was assigned for transfer to Germany.  

3.  He failed to return from leave and was absent without leave (AWOL) from 22 January to 29 January 1978.  He was then AWOL from 5 February to 13 June 1978 in violation of Article 86, Uniform Code of Military Justice.  

4.  When charges were preferred for these offenses, the applicant consulted with counsel and was advised of his rights and options.  He submitted a formal request under the provisions of Army Regulation 635-200, chapter 10, for discharge for the good of the service (in lieu of trial by court-martial for an offense punishable by a bad conduct or dishonorable discharge).  He acknowledged that, if the request was accepted, he could receive a discharge under other than honorable conditions and be furnished a UOTHC Discharge Certificate.  He acknowledged that such a discharge would deprive him of many or all of his benefits as a veteran, and that he could expect to experience substantial prejudice in civilian life.  He declined to submit statements in his own behalf.  

5.  The discharge authority approved the applicant's request and directed his discharge UOTHC.

6.  On 1 August 1978, the applicant was so discharged.  His DD Form 214 (Report of Separation from Active Duty) shows that in 1 year of active duty he had 7 months and 15 days of creditable service.

7.  There is no indication he applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

8.  Army Regulation 635-200 (Personnel Separations – Enlisted Personnel) set forth the basic authority for the separation of enlisted personnel.

	a.  Chapter 10 of that 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 have been preferred and must have included the individual's admission of guilt.  Although an honorable or general discharge was authorized, a discharge under other than honorable conditions was normally considered appropriate.

	b.  Paragraph 3-7a states 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.

	c.  Paragraph 3-7b states 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.  There is no substantiating evidence to show the applicant was lied to or misled.  

2.  The applicant performed no noteworthy service that would mitigate the seriousness of his misconduct.

3.  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, chapter 10.  He acknowledged he had been advised of and understood his rights under the Uniform Code of Military Justice, that he could receive a UOTHC discharge which would deprive him of many or all of his benefits as a veteran, that he could expect to experience substantial prejudice in civilian life if he received a UOTHC discharge, and that there was no automatic upgrading or review of a less than honorable discharge.

4.  In view of the foregoing there is no basis for granting 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)                                         AR20140014678





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ABCMR Record of Proceedings (cont)                                         AR20140014678



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