IN THE CASE OF:
BOARD DATE: 9 April 2015
DOCKET NUMBER: AR20140015249
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 correction of his military records by upgrading his undesirable discharge.
2. The applicant states he was told by his captain that his discharge would be automatically upgraded if he did not get into any trouble. He contends that he has stayed out of trouble.
3. The applicant provides copies of:
* DD Form 214 (Report of Separation from Active Duty)
* Garland County Sheriffs Department Record, dated 29 July 2014
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 3 October 1972, the applicant enlisted in the Regular Army. He completed training as a medical specialist.
3. The applicant accepted nonjudicial punishment on the following occasions:
* 21 February 1973: dereliction of duties
* 12 March 1974: willfully disobeying a lawful order
* 23 July 1974: Failure to go to his appointed place of duty at the prescribed time
* 5 August 1974: willfully disobeying a lawful order
* 6 March 1975: absent without leave during 10-15 February 1975; and failure to go to appointed place of duty on 20 February 1975
4. On 22 May 1975, the following charges were preferred under the Uniform Code of Military Justice (UCMJ):
a. Charge I: Violation of Article 92, UCMJ, for wrongful possession and sale of methaqualone, a controlled substance (two specifications); and
b. Charge II: Violation of Article 134, UCMJ, for wrongful possession of heroin (specification 1) and marijuana (specification 2).
5. On or about 27 May 1975, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the UCMJ, the possible effects of an under other than honorable conditions discharge, and of the procedures and rights that were available to him.
6. After consulting with counsel and being advised of his rights and options, the applicant submitted a 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, and that he could receive an undesirable 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 an undesirable discharge.
7. In his request for discharge, the applicant indicated that he understood that if his discharge request was approved, he could be deprived of many or all Army benefits, that 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 law.
8. The appropriate separation authority approved the applicants request for discharge and directed that he be issued a DD Form 258A (Undesirable Discharge Certificate).
9. The applicant's DD Form 214 shows he was administratively discharged on
9 September 1975, under the provisions of Army Regulation 600-200, Chapter 10, for the good of the service. His service was characterized as under conditions other than honorable. He completed 2 years, 11 months and 7 days of creditable active duty service.
10. On 27 June 1984, the Army Discharge Review Board denied the applicant's request for an upgrade of his discharge.
11. Army Regulation 635-200 (Personnel Separations), in effect at the time, set forth the basic authority for the separation of enlisted personnel.
a. Chapter 10 of that regulation provided that a member who had committed an offense or offenses for which the authorized punishment included a punitive discharge could at any time after the charges had been preferred, submit a request for discharge for the good of the service in lieu of trail by court-martial. An undesirable discharge was normally considered appropriate.
b. 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 (emphasis added), or is otherwise so meritorious that any other characterization would be clearly inappropriate.
c. Paragraph 3-7b, 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.
DISCUSSION AND CONCLUSIONS:
1. The applicant contends that his military records should be corrected by upgrading his undesirable discharge because he was told if he stayed out of trouble an upgrade would be automatic.
2. The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge. After consulting with defense counsel, he voluntarily requested discharge from the Army in lieu of trial by court-martial. All requirements of law and regulation were met. The rights of the applicant were fully protected throughout the separation process. The type of discharge directed and the reasons therefore were appropriate considering all the facts of the case.
3. There is no policy, regulation, directive or law that provides for the automatic upgrade of a less than honorable discharge from military service.
4. Based on his record of indiscipline, the applicant's service clearly does not meet the standards of acceptable conduct for Army personnel. This misconduct and lost time rendered his service unsatisfactory. Therefore, he is not entitled to an upgrade of his discharge.
5. In view of the foregoing, the applicant's request should be denied.
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) AR20130021516
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ABCMR Record of Proceedings (cont) AR20140015249
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