BOARD DATE: 9 April 2015
DOCKET NUMBER: AR20140014930
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.
2. The applicant states he believes that he was intentionally misled. The Judge Advocate General Corps (JAGC) attorney told him he could get out in 2 weeks on a "chapter 10 hardship discharge" and that he could have this discharge upgraded after 90 days.
3. The applicant provides:
* Letter, dated 23 July 2014, from the Chief, Case Management Division, Army Review Boards Agency
* Letter, dated 15 August 2014, from a Service Officer, Pike County Veterans Service Office, Waverly, OH
* Letter, dated 28 September 2011, from the National Personnel Records Center
* DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 30 October 1981
* DA Form 2-1 (Personnel Qualification Record)
* DD Form 4 (Enlistment/Reenlistment Document - Armed Forces of the United States)
* DA Form 2627 (Record of Proceedings under Article 15, Uniform Code of Military Justice (UCMJ), dated 14 November 1980
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. After having prior service in the Army National Guard, the applicant enlisted in the Regular Army on 10 October 1979.
3. His DA Form 2-1 shows he was absent without leave (AWOL) from 28 to 29 January 1980 (2 days). His service record is void of evidence which shows he received nonjudicial punishment for this period of AWOL.
4. His service record shows he accepted nonjudicial punishment under Article 15, UCMJ on two separate occasions for failing to go at the time prescribed to his appointed place of duty on 3 November 1980, 29 May 1981, and 1 June 1981.
5. On 21 September 1981, charges were preferred against the applicant for being AWOL from 18 June to 28 August 1981 (72 days).
6. He consulted with legal counsel from the JAGC and he voluntarily requested discharge under the provisions of Army Regulation 635-200 (Personnel Separations Enlisted Personnel), chapter 10, for the good of the service in lieu of trial by court-martial. In doing so, he admitted guilt to the offense charged. He acknowledged he understood he might encounter substantial prejudice in civilian life and that he might be ineligible for many or all Army benefits administered by the Veterans Administration (VA) if a UOTHC discharge was issued to him. He did not submit statements in his own behalf.
7. His unit and intermediate commander recommended approval with a general discharge and his senior intermediate commander recommended approval with a UOTHC.
8. On 20 October 1981, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of trial by court-martial with a UOTHC discharge and reduction to private/E-1.
9. He was discharged on 30 October 1981 with a UOTHC discharge after completing a total of 1 year, 10 months, and 9 days of net active service this period with 73 days of lost time.
10. His service record does not indicate he applied to the Army Discharge Review Board with that board's 15-year statute of limitations.
11. 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. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a UOTHC discharge is normally considered appropriate.
a. 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 members 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.
b. Paragraph 7-3-b 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.
c. Paragraph 6-3 states Soldiers of the Active Army and the Reserve Components may be discharged or released because of genuine dependency or hardship.
DISCUSSION AND CONCLUSIONS:
1. The applicant's contention that he believes he was intentionally misled is acknowledged. However, the applicant's administrative separation was accomplished in compliance with applicable regulations with no indication of procedural errors which would tend to jeopardize his rights.
2. The applicant's request for a chapter 10 discharge, even after appropriate and proper consultation with a military lawyer, tends to show he wished to avoid the court-martial and the punitive discharge that he might have received.
3. During the separation processing, the applicant was advised of the effects of a discharge UOTHC and that he might be deprived of many or all Army and VA benefits. He was afforded the opportunity to submit statements in his own behalf, but he declined to do so.
4. The applicant's service record shows he received two Article 15s and has a record of 73 days of lost time due to being AWOL.
5. The applicant's contentions that the JAGC attorney told him he could get out in 2 weeks on a "chapter 10 hardship discharge" and that he could have this discharge upgraded after 90 days are acknowledged.
a. However, 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.
b. With regard to the applicant's statement of "chapter 10 hardship discharge," a chapter 10 discharge and a hardship discharge are two different types of separations.
6. A UOTHC discharge was normally appropriate for a Soldier discharged under chapter 10. The evidence of record does not indicate the actions taken in his case were in error or unjust. It appears the separation authority determined the applicant's overall service did not meet the standards of acceptable conduct and performance of duty to warrant an honorable or a general discharge, and the applicant provides insufficient evidence/argument explaining why it should be upgraded now.
7. In view of the foregoing, there is an insufficient evidentiary 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) AR20140014930
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ABCMR Record of Proceedings (cont) AR20140014930
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