IN THE CASE OF:  

		BOARD DATE:  6 August 2015	  

		DOCKET NUMBER:  AR20140020794 


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 to a general discharge.

2.  The applicant states the military changed his military occupational specialty (MOS) to 94B (food service specialist).  He went through his chain of command for award of the MOS he enlisted for.  They kept shuffling him around and he got nowhere.  He was deceived from the first day he enlisted.

3.  The applicant provides no additional evidence.

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 insufficient bases to waive the statute of limitations.

2.  The applicant enlisted in the U.S. Army Reserve (USAR) Delayed Entry Program in pay grade E-1 on 17 November 1981 for 6 years.  

3.  His records contain the following:

* DD Form 4/1 (Enlistment/Reenlistment Document – Armed Forces of the United States), dated 17 November 1981, which does not indicate he was enlisting for a specific MOS.  
* DD Form 1966-7 (Application for Enlistment – Armed Forces of the United States), dated 17 November 1981, showing in item 42e (MOS), Section VI (Enlistment Options Accepted), he enlisted for MOS 94B.

4.  He was ordered to and entered initial active duty for training (IADT) for MOS 94B on 1 December 1981.

5.  He was reported absent without leave (AWOL) on:

* 1 March 1982, was dropped from the rolls on 31 March 1982, and he surrendered to military authorities on 6 April 1982
* 12 April 1982 and he surrendered to military authorities on 26 April 1982
* 10 May 1982 and he surrendered to military authorities on 13 May 1982

6.  On 17 May 1982, a DD Form 458 (Charge Sheet) was completed by the Commander, U.S. Army Personnel Control Facility (USAPCF), Fort Ord, CA.  The applicant was charged with three specifications each of being AWOL from 1 March to 6 April 1982, 12 to 26 April 1982, and 10 to 13 May 1982.  On the same day court-martial charges were preferred against the applicant.

7.  On 17 May 1982, after consulting with counsel, the applicant admitted he was knowingly, willingly, and voluntarily AWOL.  He 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 trail by court-martial for charges being preferred against him.  He acknowledged that he could be discharged UOTHC and furnished an UOTHC Discharge Certificate and the result of the issuance of such a discharge.  He waived his rights and elected not to submit a statement in his own behalf.  

8.  On 10 June 1982, the Commander, USAPCF, recommended approval of the applicant's UOTHC discharge request.  He stated the applicant enlisted in the USAR for the education.  The applicant went AWOL because of his MOS.  The applicant desired a discharge because he no longer wished to remain in the service and he stated if returned to duty, he would again go AWOL.
9.  On 10 June 1982, the Headquarters Commander, USAPCF, recommended approval of the applicant's UOTHC discharge.  He stated the applicant's pattern of behavior indicated that retention was neither practical nor desirable.

10.  On 22 June 1982, the separation authority approved the applicant’s request and directed the issuance of an UOTHC discharge and reduction to pay
grade E-1.

11.  He was discharged accordingly on 30 July 1982.  He was credited with completing 6 months and 7 days of active service and 53 days of time lost.  His service was characterized as UOTHC.

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

13.  Army Regulation 635-200, in effect at the time, set forth the basic authority for separation of enlisted personnel.  The regulations 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 was 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.  An UOTHC discharge would normally be furnished to an individual who was discharged for the good of the service.

   b.  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.  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 was charged with the commission of an offense punishable under the Uniform Code of Military Justice with a punitive discharge.  Discharge actions processed under the provisions of chapter 10 of Army Regulation 635-200 are voluntary requests for discharge in lieu of trial by court-martial.  He acknowledged the reason for his discharge and that he could be furnished an UOTHC Discharge Certificate.  He waived his rights and elected not to submit a statement in his own behalf.    

2.  He provided no evidence or a convincing argument to show his UOTHC discharge should be upgraded and his available military records contain no evidence which would support an upgrade of this discharge.  The evidence shows his misconduct of three periods of AWOL totaling 53 days of lost time during his period of IADT diminished the quality of his service below that meriting a general or a fully honorable discharge.

3.  Without evidence to the contrary, it appears 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 an insufficient evidentiary 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)                                         AR20140020794



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ABCMR Record of Proceedings (cont)                                         AR20140020794



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