IN THE CASE OF:	  

		BOARD DATE:	  2 April 2015

		DOCKET NUMBER:  AR20140014686 


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 discharge to an honorable discharge.

2.  The applicant states the Veterans Administration (VA) determined he was discharged under honorable conditions.  He would like to have his DD Form 214 (Certificate of Release or Discharge from Active Duty) corrected to reflect the VA's findings. 

3.  The applicant provides 2 copies of a letter from the VA.

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 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 Delayed Entry Program (DEP) on 6 May 1977 and was discharged from the DEP on 14 September 1977. He enlisted in the Regular Army, in pay grade E-2, on 15 September 1977, for 3 years.  He was awarded military occupational specialty 13F (fire support specialist).  He was advanced to pay grade E-3 on 15 September 1978.  He served in Germany from 29 April 1979 through on or about 24 March 1980.

3.  On 15 January 1980, he accepted nonjudicial punishment, under Article 15, Uniform Code of Military Justice, for failing to go to his appointed place of duty on 19 December 1979.  His punishment included a suspended reduction to pay grade E-2, a forfeiture of $116.00 of pay, and 7 days of extra duty and restriction. He elected to appeal.  

4.  On 23 January 1980, the convening authority granted his appeal and vacated the suspended reduction, set aside his punishment, and restored all rights and privileges to him.

5.  His record is void of the complete facts and circumstances surrounding his discharge; however, his record contains the following:

   a.  Orders Number 77-32, issued by the U.S. Army Regional Personnel Center, Baumholder, Germany on 20 March 1980, reassigning him to the separation transfer point for discharge on 20 April 1980, with an Under Other Than Honorable Conditions Discharge Certificate.  

   b.  A DD Form 214 which shows he was discharged in pay grade E-1 on 25 March 1980, under the provisions of Army Regulation 635-200 (Personnel Separations, Enlisted Separations), chapter 10, by reason of conduct triable by court-martial.  His service was characterized as under conditions other than honorable.  He was credited with completing 2 years, 6 months, and 11 days of active service.

6.  He provided 2 copies of a letter, dated 16 January 1981, wherein the VA advised him that his discharge on 25 March 1980 was under honorable conditions and he was entitled to VA and unemployment benefits.

7.  There is no evidence he petitioned the Army Discharge Review Board within its 15-year statute of limitation for an upgrade of his discharge.

8.  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 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 an under other than honorable conditions discharge and the adverse nature of such a discharge, and the possible consequences thereof.  By signing the statement and requesting discharge, he was admitting guilt to the charge(s) against him, or of a lesser included offense.  The regulation required that the request be forwarded through channels to the general court-martial convening authority for review and approval.  An under other than honorable conditions discharge 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.

   c.  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 complete facts and circumstances surrounding his discharge; however, it appears court-martial charges were preferred against him and after consulting with counsel, he appears to have voluntarily, willingly, and in writing requested discharge from the Army for the good of the service.  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.  Notwithstanding the letter from the VA, there is no evidence of record and he provided none showing he was honorably discharged on 25 March 1980.  He also did not provide sufficient evidence or a convincing argument to show his under other than honorable conditions discharge should be upgraded and his military records contain no evidence which would entitle him to an upgrade of this discharge to a general or fully honorable discharge.  

3.  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)                                         AR20140014686



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ABCMR Record of Proceedings (cont)                                         AR20140014686



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